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Unit Five: Race, Ideology, Religion, and Gender
  • 1 Race in International Law

    • 1.1 UN Charter, Arts. 55-56

      UN Charter (1945)

      CHAPTER IX

      INTERNATIONAL ECONOMIC AND SOCIAL CO-OPERATION

      Article 55

      With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: …

      c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

      Article 56

      All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

    • 1.2 Brief of Thurgood Marshall et al., U.S. Supreme Court, McGhee v. Sipes, 1947 WL 30427 (1947), excerpt

      Supreme Court of the United States

      Orsel MCGHEE and Minnie S. McGhee, his wife, Petitioners,

      v.

      Benjamin J. SIPES, and Anna C. Sipes, James A. Coon and Addie A. Coon, et al., Respondents.

       

      October Term, 1947

       

      1947 WL 30427 (U.S.) (Appellate Brief)

      Brief for Petitioners

       

      Thurgood Marshall, Loren Miller, Willis M. Graves, Francis Dent, Counsel for Petitioner.

      Petitioners are citizens of the United States and are Negroes (R. 48, 53). They own and occupy as a residence *3 Lot 52 in Seebaldt's Subdivision of the City of Detroit, Michigan, commonly known as 4626 Seebaldt Avenue (R. 7). Respondents are the owners of lots in the same subdivision and an adjoining subdivision (R. 7). At various times during the year 1934 the predecessors in title of the petitioners and respondents had executed and recorded an instrument relating to their respective lots in such subdivisions, providing in its essential parts as follows:

      “We, the undersigned, owners of the following described property:

      Lot No. 52 Seebaldt's Sub. of Part of Joseph Tireman's Est. 1/4 Sec. 51 & 52 10 000 A T and Fr'l Sec. 3, T. 2S, R 11 E.

      for the purpose of defining, recording, and carrying out the general plan of developing the subdivision which has been uniformly recognized and followed, do hereby agree that the following restriction be imposed on our property above described, to remain in force until January 1, 1960-to run with the land, and to be binding on our heirs, executors, and assigns:

      “This property shall not be used or occupied by any person or persons except those of the Caucasian race.

      “It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction” (R. 42).

      Such restriction was sought to be imposed upon 53 lots in the two subdivisions in which respondents reside (R. 34). Petitioners purchased their property from persons who did not sign the restrictive agreement (R. 13).

       

      Question Presented

      Does the enforcement by state courts of an agreement restricting the disposition of land by prohibiting its use and occupancy by members of unpopular minority groups, where neither the willing seller nor the willing purchaser was a party to the agreement imposing the restriction, violate the Fourteenth Amendment and treaty obligations under the United Nations Charter?

       

      Errors Relied Upon

      The Supreme Court of Michigan erred in holding:

      1. That the due process clause of the 14th Amendment afforded petitioners no rights other than notice, a day in court and reasonable opportunity to appear and defend, and was not violated by the issuance of the injunction enforcing the race restrictive agreement (R. 65-66).

      2. That court enforcement of the restriction in question does not violate the equal protection clause of the 14th Amendment, because “we have never applied the constitutional prohibition to private relations and private contracts” and that on the contrary to refuse to enforce the agreement would deny equal protection to the plaintiffs below (R. 66).

      3. That the human rights provisions of United Nations Charter are “merely indicative of a desirable social trend and an objective devoutly to be desired by all well-thinking peoples.” It is not “a principle of law that a treaty between sovereign nations is applicable to the contractual rights between citizens of the United States when a determination of these rights is sought in State courts” (R. 67).

       

      VI

      Judicial Enforcement of This Restrictive Covenant Violates the Treaty Entered Into Between the United States and Members of the United Nations Under Which the Agreement Here Sought to Be Enforced Is Void.

      By Articles 55 and 56 of the United Nations Charter, each member nation of that body is pledged to take joint and separate action to promote:

      “Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.”

      While the Charter recognizes the sovereignty of the members, it states at the outset:

      “All members, in order to insure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations in accordance with the present Charter.”[FN1]

      FN1. United Nations Charter, Article 2, Paragraph 2.

      This solemn international compact was described by the Michigan Supreme Court as merely, “indicative of a desirable social trend and an objective devoutly to be desired by all well-thinking people” (R. 67).

      In addition to the decisions of this Court defining human rights to include the right of colored persons to own and use property, the provisions of the United Nations Charter have been similarly construed by authorities.[FN3] For example, *85 the American Law Institute interprets the provisions of Article 55 to include the right of every person to adequate housing.[FN4]

      FN3. See January, 1946 issue of 243 Annals of the American Academy of Political and Social Science, on “Essential Human Rights,” particularly articles by Edward R. Stettinius, Jr., p. 1, Charles E. Merriam, p. 11.

      FN4. American Law Institute, 243 Annals of the American Academy of Political and Social Science. See also in the Annals, C. Wilfred Jenks, “ “The Five Economic and Social Rights,” pp. 43-45.

      The United Nations Charter is a treaty, duly executed by the President and ratified by the Senate (51 Stat. 1031). Under the Constitution such a treaty is the “supreme Law of the Land” and specifically, “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”[FN5]

      FN5. Article VI, Section 2.

      In the face of this provision, the Michigan Supreme Court stated that it is not a principle of law that a treaty between sovereign nations, “is applicable to the contractual rights between citizens when a determination of these rights is sought in State courts” (R. 67).

      Historically, however, no doubt has been entertained as to the supremacy of treaties under the Constitution. Thus Madison, in the Virginia Convention, said that if a treaty does not supersede existing state laws, as far as they contravene its operation, the treaty would be ineffective.

      “To counteract it by the supremacy of the state laws would bring on the Union the just charge of national perfidy, and involve us in war.”[FN6]

      FN6. 3 Elliots Debates 515.

      The treatment of minority citizens within the border of a sovereign state is the proper subject of international negotiations and is a subject directly affecting international relations. The question arose, in view of the Nazi extermination policy, whether, “sovereignty goes so far that a government can destroy with impunity its own citizens and whether such acts of destruction are domestic affairs or matters of international concern.”[FN11] That question was resolved by the human rights provisions of the United Nations Charter, and by the subsequent adoption by the United Nations General Assembly of a resolution affirming the principles that genocide is a crime under International Law whether committed by private individuals, public officials or statesmen.[FN12] This resolution changes fundamentally the responsibility of a sovereign nation toward its citizens.[FN13] While the Nuremberg trials were confined in scope to acts committed after the commencement of war or in preparation for it, the inclusion of persecution of German nationals in crimes against humanity indicates that the field of international affairs has been broadened to include domestic activity of a nation.

      FN11. Raphael Lemkin, “Genocide as a Crime under International Law,” Am. J. of Int. Law, Vol. 41, No. 1 (Jan., 1947), p. 145.

      FN12. Resolution of General Assembly of United Nations, Dec. 11, 1946.

      FN13. Lemkin, op. cit., p. 150.

      Official spokesmen for the American State Department have expressed concern over the effect racial discrimination in this country has upon our foreign relations and the then Secretary of State Stettinius pledged our government before the United Nations to fight for human rights at home and abroad.[FN14]

      FN14. McDiarmid, “The Charter and the Promotion of Human Rights,” 14 State Department Bulletin 210 (Feb. 10, 1946); and Stettinius' statement, 13 State Department Bulletin, 928 (May, 1945). See also letter of Acting Secretary of State Dean Acheson to the F. E. P. C. published at length in the Final Report of F. E. P. C., reading in part, “the existence of discrimination against minority groups in this country has an adverse effect upon our relations with other countries.”

      The interest of the United States in the domestic affairs of the nations with whom we have signed treaties of peace following World War II can be seen from the provisions in the peace treaties with Italy, Bulgaria, Hungary and Rumania, and particularly with settlement of the free territory of Trieste, in all of which we specifically provided for governmental responsibility for a non-discriminatory practice as to race, sex, language, religion, and ethnic origin.[FN15]

      FN15. See description of these provisions in, “Making the Peace Treaties, 1941-1947” (Department of State Publications 2774, European Series 24); 16 State Department Bulletin 1077, 1080-82.

      The Potsdam Declaration provided for the abolition of all Nazi laws establishing racial or religious discrimination, “whether legal, administrative or otherwise.”

      This growth in international law has established that it is now proper for the executive arm of the United States Government to enter into treaties affecting the treatment of citizens of the United States within its own boundaries. There was never any question, however, that at all times the United States could by treaty protect and extend the rights of nationals of other states residing in this country, and as to covenants running against the foreign born of many nations, such power has always existed.…

      Within the framework of our federal form of government, there may be fields in which enabling legislation is required to implement the solemn obligations of the human rights sections of the United Nations Charter. But the decisions of this Court leave no doubt that a contract by its own terms violative of the treaty obligations of the United States is void.

      Even were it not established that the individual's right to enter into contracts in violation of treaties is restricted, certainly such contracts cannot be enforced by resort to the power of the state's judiciary since the states have divested themselves of all authority in connection with international relations and have agreed that for their mutual protection, this authority must be vested solely in the federal government.

      Such a decision was reached by the Court of another member of the United Nations, the Ontario Supreme Court, when it held unenforceable a restriction against ownership of land by, “Jews or persons of objectionable nationality.”[FN19]

      FN19. In Re Drummond Wren, 4 D. L. R. 674 (1945).

      The attempt by the courts of the various states to aid private individuals in the prosecution of a course of action utterly destructive of the solemn treaty obligations of the United States must be struck down by this Court or America will stand before the world repudiating the human rights provisions of the United Nations Charter and saying of them that they are meaningless platitudes for which we reject responsibility.

    • 1.3 International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Preamble and Arts. 1-5

      International Convention on the Elimination of Racial Discrimination (CERD) (1965/1969)

      PREAMBLE

      The States Parties to this Convention,

      Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

      Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,

      Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination,

      Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end,

      Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,

      Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

      Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

      Convinced that the existence of racial barriers is repugnant to the ideals of any human society,

      Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

      Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination,

      Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960,

      Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of Al l Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,

      Have agreed as follows:

      PART I

      Article 1

      1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

      2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.

      3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.

      4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

      Article 2

      1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

      (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

      (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

      (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;

      (e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

      2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

      Article 3

      States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.

      Article 4

      States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

      (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

      (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

      (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

      Article 5

      In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

      (a) The right to equal treatment before the tribunals and all other organs administering justice;

      (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;

      (c) Political rights, in particular the right to participate in elections-to vote and to stand for election-on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;

      (d) Other civil rights, in particular:

      (i) The right to freedom of movement and residence within the border of the State;

      (ii) The right to leave any country, including one's own, and to return to one's country;

      (iii) The right to nationality;

      (iv) The right to marriage and choice of spouse;

      (v) The right to own property alone as well as in association with others;

      (vi) The right to inherit;

      (vii) The right to freedom of thought, conscience and religion;

      (viii) The right to freedom of opinion and expression;

      (ix) The right to freedom of peaceful assembly and association;

      (e) Economic, social and cultural rights, in particular:

      (i) The rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration;

      (ii) The right to form and join trade unions;

      (iii) The right to housing;

      (iv) The right to public health, medical care, social security and social services;

      (v) The right to education and training;

      (vi) The right to equal participation in cultural activities;

      (f) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres and parks.

    • 1.4 U.S. RUDs on CERD, 140 Cong. Rec. S7634-02 (1994)

      US RUDs on CERD, 140 Cong. Rec. S7634-02 (1994)


      I. The Senate's advice and consent is subject to the following reservations:

      (1) That the Constitution and laws of the United States contain extensive protections of individual freedom of speech, expression and association. Accordingly, the United States does not accept any obligation under this Convention, in particular under Articles 4 and 7, to restrict those rights, through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States.

      (2) That the Constitution and the laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental activity. Individual privacy and freedom from governmental interference in private conduct, however, are also recognized as among the fundamental values which shape our free and democratic society. The United States understands that the identification of the rights protected under the Convention by reference in Article 1 to the fields of "public life" reflects a similar distinction between spheres of public conduct that are customarily the subject of governmental regulation, and spheres of private conduct that are not. To the extent, however, that the Convention calls for a broader regulation of private conduct, the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph (1) of Article 2, subparagraphs (1)(c) and (d) of Article 2, Article 3 and Article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States.

      (3) That with reference to Article 22 of the Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case.


      II. The Senate's advice and consent is subject to the following understanding, which shall apply to the obligations of the United States under this Convention: That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises jurisdiction over the matters covered therein, and otherwise by the state and local governments. To the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall, as necessary, take appropriate measures to ensure the fulfillment of this Convention.

      III. The Senate's advice and consent is subject to the following declaration: That the United States declares that the provisions of the Convention are not self-executing.

      IV. The Senate's advice and consent is subject to the following proviso, which shall not be included in the instrument of ratification to be deposited by the President:

      Nothing in this Convention requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States.

       

    • 1.5 Committee on Racial Discrimination, Concluding Observations on the Combined Seventh to Ninth Reports of the United States, CERD/C/USA/CO/7-9 (2014), excerpt

      Committee on the Elimination of Racial Discrimination

      Concluding observations on the combined seventh to ninth periodic reports of the United States of America*

      1. The Committee considered the seventh to ninth periodic reports of the United States of America, submitted in one document (CERD/C/USA/7-9), at its 2299th and 2300th meetings (CERD/C/SR.2299 and SR.2300), held on 13 and 14 August 2014. At its 2317th meeting, held on 26 August 2014, it adopted the following concluding observations….

      C. Concerns and recommendations

      Applicability of the Convention at the national level

      2. While noting the applicability of the disparate impact doctrine in certain fields of life, the Committee remains concerned at its limited scope and applicability. It thus reiterates its previous concern that the definition of racial discrimination used in federal and state legislation, as well as in court practice, is not in line with article 1, paragraph 1, of the Convention on the Elimination of All Forms of Racial Discrimination, which requires States parties to prohibit and eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but are discriminatory in effect (para. 10). The Committee expresses further concern at the lack of progress in withdrawing or narrowing the scope of the reservation to article 2 of the Convention and in prohibiting all forms of discriminatory acts perpetrated by private individuals, groups or organizations (para. 11) (arts. 1 (1), 2 and 6).

      The Committee underlines the responsibility of the federal Government for the implementation of the Convention, and calls upon the State party to take concrete steps to:

      (a) Prohibit racial discrimination in all its forms in federal and state legislation, including indirect discrimination, covering all fields of law and public life, in accordance with article 1, paragraph 1, of the Convention;

      (b) Consider withdrawing or narrowing its reservation to article 2 of the Convention and broaden the protection afforded by law against all discriminatory acts perpetrated by private individuals, groups or organizations; 

      (c) Improve the system of monitoring and response by federal bodies to prevent and challenge situations of racial discrimination.

      National human rights institution

      3. While taking note of the creation of the Equality Working Group, the Committee reiterates its concern at the lack of an institutionalized coordinating mechanism with capacities to ensure the effective implementation of the Convention at the federal, state and local levels (para. 13). Noting the role that an independent national human rights institution can play in that regard, the Committee expresses regret at the lack of progress in establishing a national human rights institution, as recommended in its previous concluding observations (para. 12) (art. 2).

      The Committee recommends that the State party create a permanent and effective coordinating mechanism, such as a national human rights institution established in accordance with the principles relating to the status of national institutions (the Paris Principles) (General Assembly resolution 48/134, annex) to ensure the full implementation of the Convention throughout the State party and the territories under its effective control, monitor compliance of domestic laws and policies with the provisions of the Convention and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels.

      Special measures

      4. Taking note of the Supreme Court decision of April 2014 in Schuette v. Coalition to Defend Affirmative Action and the measures adopted by several states against the use of affirmative action in school admissions, the Committee expresses concern at the increasing restrictions, based on race or ethnic origin, on the use of special measures as a tool to eliminate persistent disparities in the enjoyment of human rights and fundamental freedoms (art. 2 (2)).

      The Committee reiterates its previous recommendation (para. 15) to adopt and strengthen the use of special measures, which is an obligation arising from article 2, paragraph 2, of the Convention, when circumstances warrant their use as a tool to eliminate the persistent disparities in the enjoyment of human rights and fundamental freedoms, based on race or ethnic origin. In that regard, it recommends that the State party take into account the Committee’s general recommendation No. 32 (2009) on the meaning and scope of special measures in the International Convention on the Elimination of All Forms Racial Discrimination….

      Racial profiling and illegal surveillance

      5. While welcoming the acknowledgement by the State party that racial or ethnic profiling is not effective law enforcement practice and is inconsistent with its commitment to fairness in the justice system, the Committee remains concerned at the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), the Transportation Security Administration, border enforcement officials and local police (arts. 2, 4 (c) and 5 (b)).

      Recalling its general recommendation No. 31 (2001) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, the Committee urges the State party to intensify efforts to effectively combat and end the practice of racial profiling by federal, state and local law enforcement officials, including by:

      (a) Adopting and implementing legislation which specifically prohibits law enforcement officials from engaging in racial profiling, such as the End Racial Profiling Act;

      (b) Swiftly revising policies insofar as they permit racial profiling, illegal surveillance, monitoring and intelligence gathering, including the 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies;

      (c) Ending immigration enforcement programmes and policies which indirectly promote racial profiling, such as the Secure Communities programme and the Immigration and Nationality Act section 287(g) programme; 

      (d) Undertaking prompt, thorough and impartial investigations into all allegations of racial profiling, surveillance, monitoring and illegal intelligence-gathering; holding those responsible accountable; and providing effective remedies, including guarantees of non-repetition. …

      Racist hate speech and hate crimes

      6. The Committee reiterates its concern at the lack of prohibition of racist hate speech, except for instances amounting to incitement to imminent violence or “true threats” of violence, as well as the wide scope of the reservations to article 4 of the Convention (para. 18). The Committee is also concerned at the underreporting of instances of hate crimes by the victims to the police, as well as by law enforcement officials to the FBI, given the voluntary nature to comply with the request of the FBI for hate crime statistics (arts. 2 and 4).

      The Committee recommends that the State party:

      (a) Consider withdrawing or narrowing its reservation to article 4 of the Convention, taking into account the Committee’s general recommendation No. 35 (2013) on combating racist hate speech, which outlines diverse measures to effectively combat racist hate speech while protecting the legitimate right to freedom of expression;

      (b) Improve its data collection system for statistics on complaints of hate crimes, including by officially requiring all law enforcement agencies to record and transmit all such instances to the FBI, disaggregated by factors such as race, ethnicity, age and religion, and regularly publicize such information;

      (c) Ensure that all law enforcement officials and all new recruits are provided with initial and ongoing in-service training on the investigation and reporting of complaints of hate crimes; 

      (d) Provide statistical information concerning trends in instances of racist hate speech in its next periodic report so as to assess the impact of measures adopted by the State party in combating racist hate speech.  ….

      Criminalization of homelessness

      7. While appreciating the measures taken by the federal and some state and local authorities to address homelessness, the Committee is concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e)).

      The Committee calls upon the State party to:

      (a) Abolish laws and policies making homelessness a crime;

      (b) Ensure close cooperation among all relevant stakeholders, including social, health, law enforcement and justice professionals at all levels, to intensify efforts to find solutions for the homeless, in accordance with human rights standards;

      (c) Offer incentives to decriminalize homelessness, including by providing financial support to local authorities that implement alternatives to criminalization, and withdrawing funding from local authorities that criminalize homelessness.

      Discrimination and segregation in housing

      8. While acknowledging the positive steps taken by the State party to address discrimination in access to housing and to reverse historical patterns of segregation, the Committee remains concerned at: (a) the persistence of discrimination in access to housing on the basis of race, colour, ethnicity or national origin; (b) the high degree of racial segregation and concentrated poverty in neighbourhoods characterized by sub-standard conditions and services, including poor housing conditions, limited employment opportunities, inadequate access to health-care facilities, underresourced schools and high exposure to crime and violence; and (c) discriminatory mortgage-lending practices and the foreclosure crisis which disproportionately affected, and continues to affect, racial and ethnic minorities (arts. 3 and 5 (e)).

      The Committee urges the State party to intensify its efforts to eliminate discrimination in access to housing and residential segregation based on race, colour ethnicity or national origin, by, inter alia:

      (a) Ensuring the availability of affordable and adequate housing for all, including by effectively implementing the Affirmatively Furthering Fair Housing requirement by the Department of Housing and Urban Development, across all agencies administering housing programmes;

      (b) Strengthening the implementation of legislation to combat discrimination in housing, such as the Fair Housing Act and Title VIII of the Civil Rights Act of 1968, including through the provision of adequate resources and increasing the capacity of the Department of Housing and Urban Development;

      (c) Undertaking prompt, independent and thorough investigation into all cases of discriminatory practices by private actors, including in relation to discriminatory mortgage lending practices, steering and red-lining; holding those responsible to account; and providing effective remedies, including appropriate compensation, guarantees of non-repetition and changes in relevant laws and practices.

      Education

      9. While welcoming measures taken by the State party to address de facto racial segregation in education, such as the formation of the Equity and Excellence Commission in 2011, the Committee remains concerned that students from racial and ethnic minorities disproportionately continue to attend segregated schools with segregated or unequal facilities and that even those who are enrolled in racially diverse schools are frequently assigned to “single-race” classes, denied equal access to advanced courses and disciplined unfairly and disproportionately due to their race, including referral to the criminal justice system. It also expresses concern at racial disparities in academic achievement, which contribute to unequal access to employment opportunities (arts. 3 and 5 (e)).

      The Committee recommends that the State party intensify its efforts to ensure equal access to education by, inter alia:

      (a) Developing and adopting a comprehensive plan to address racial segregation in schools and neighbourhoods, with concrete goals, timelines and impact assessment mechanisms;

      (b) Increasing federal funding for programmes and policies that promote racially integrated learning environments for students;

      (c) Effectively implementing the recommendations contained in the report of the Equity and Excellence Commission published in February 2013;

      (d) Re-authorizing the Elementary and Secondary Education Act with provisions that support and encourage solutions to address school segregation; 

      (e) Continuing to work closely with state and local education authorities as well as civil society groups to strengthen measures to address the factors that contribute to the educational achievement gap. 

      Gun violence

      10. The Committee is concerned at the high number of gun-related deaths and injuries which disproportionately affect members of racial and ethnic minorities, particularly African Americans. It is also concerned at the proliferation of “Stand Your Ground” laws, which are used to circumvent the limits of legitimate self-defence, in violation of the State party’s duty to protect life, and have a disproportionate and discriminatory impact on members of racial and ethnic minorities (arts. 2, 5 (b) and 6).

      The Committee urges the State party to take effective legislative and policy measures to fulfil its obligation to protect the right to life and to reduce gun violence, including by adopting legislation expanding background checks for all private firearm transfers and prohibiting the practice of carrying concealed handguns in public venues; increasing transparency concerning gun use in crime and illegal gun sales, including by repealing the Tiahrt Amendments; and reviewing the Stand Your Ground laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when deadly force is used for self-defence.

      Excessive use of force by law enforcement officials

      11. While recognizing the efforts made by the State party to intensify the enforcement of relevant laws, the Committee reiterates its previous concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans and undocumented migrants crossing the United States–Mexico border (para. 25). It also remains concerned that, despite the measures taken by the State party to prosecute law enforcement officials for criminal misconduct, impunity for abuses, in particular those committed by the Customs and Border Protection (CBP) against Hispanic/Latino Americans and undocumented migrants, remains a widespread problem (arts. 5 (b) and 6).

      The Committee urges the State party to:

      (a) Ensure that each allegation of excessive use of force by law enforcement officials is promptly and effectively investigated; that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions; that investigations are re-opened when new evidence becomes available; and that victims or their families are provided with adequate compensation;

      (b) Intensify its efforts to prevent the excessive use of force by law enforcement officials by ensuring compliance with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and ensure that the new CBP directive on the use of force is applied and enforced in practice;

      (c) Improve the reporting of cases involving the excessive use of force and strengthen oversight of, and accountability for, inappropriate use of force; 

      (d) Provide, in its next periodic report, detailed information concerning investigations undertaken into allegations of excessive use of force by law enforcement officials, including the CBP, as well as their outcomes, including disciplinary or prosecutorial action taken against the perpetrator and remedies provided to victims or their families. …

      Criminal justice system

      12. While welcoming the measures taken by the State party to address racial disparities in the criminal justice system, such as the launch of the “Smart on Crime” initiative in August 2013, the Committee remains concerned that members of racial and ethnic minorities, particularly African Americans, continue to be disproportionately arrested, incarcerated and subjected to harsher sentences, including life imprisonment without parole and the death penalty. It expresses concern that the overrepresentation of racial and ethnic minorities in the criminal justice system is exacerbated by the use of prosecutorial discretion, the application of mandatory minimum drug-offence sentencing policies, and the implementation of repeat offender laws. The Committee is also concerned at the negative impact of parental incarceration on children from racial and ethnic minorities (arts. 2, 5 and 6).

      The Committee calls upon the State party to take concrete and effective steps to eliminate racial disparities at all stages of the criminal justice system, taking into account the Committee’s general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, by, inter alia:

      (a) Amending laws and policies leading to racially disparate impacts in the criminal justice system at the federal, state and local levels and implementing effective national strategies or plans of action aimed at eliminating structural discrimination;

      (b) Imposing a moratorium on the death penalty, at the federal level, with a view to abolishing the death penalty;

      (c) Ensuring that the impact of incarceration on children and/or other dependents is taken into account when sentencing an individual convicted of a non-violent offence and promoting the use of alternatives to imprisonment. …

      National action plan to combat racial discrimination

      13. While noting various measures taken by the State party to combat prejudice and promote understanding and tolerance, the Committee expresses concern at the absence of a national action plan to combat racial discrimination and to implement its recommendations. It is also concerned about the lack of inclusion of human rights in the school curricula (art. 7).

      The Committee recommends that the State party adopt a national action plan to combat structural racial discrimination, and to ensure that school curricula, textbooks and teaching materials are informed by and address human rights themes and seek to promote understanding among racial and ethnic minority groups. …

      Paragraphs of particular importance

      14. The Committee also wishes to draw the attention of the State party to the particular importance of the recommendations in paragraphs 8 [and 12] above, and requests the State party to provide detailed information in its next periodic report on concrete measures taken to implement those recommendations….

  • 2 Why is #BLM Not a Human Rights Movement (or Is It?)

    • 2.1 Opal Tometi and Gerald Lenoir, “Black Lives Matter Is Not a Civil Rights Movement,” Time, December 10, 2015

    • 2.2 Frederick C. Harris, “The Next Civil Rights Movement?,” Dissent 63 (2015), excerpt

      The Next Civil Rights Movement?
      https://www.dissentmagazine.org/article/black-lives-matter-new-civil-rights-movement-fredrick-harris

      Fredrick C. Harris, Dissent, Summer 2015

      Kareem Jackson, a St. Louis hip-hop artist who goes by the name Tef Poe, was interviewed this February by a BBC talk show host about why the Black Lives Matter movement was necessary. A leader in the organization Hands Up United, which was founded in the wake of Michael Brown’s murder, Poe explained: “One of the negligent areas of the civil rights movement is that we did not move the moral compass of racism to the right direction.”

      Though the 1960s movement addressed the civil and political rights that were denied to black people—access and use of public accommodations, the right to vote, and ensuring fair employment and housing opportunities—it did not directly confront the racialized degradation black people endured, and many continue to endure, at the hands of the police. What the Black Lives Matter protests have done, however, is not only put police reform on the policy agenda but demanded that American society reconsider how it values black lives….

      ​Unlike the civil rights movement, the focus of Black Lives Matter—on policing in black and brown communities, on dismantling mass incarceration—is also being articulated less as a demand for specific civil or political rights, and more as a broader claim for “black humanity.” This insistence on black humanity has repeatedly been used by Black Lives Matter activists as a catalyst for political action. “If you can see a dead black boy lie in the street for four and a half hours and that doesn’t make you angry, then you lack humanity,” said Ashley Yates, a Ferguson activist and co-founder of Millennial Activists United, at a rally last October. Evoking humanity is used to express communal anger against police brutality, but also to mobilize those who aren’t acting. Yates explained further:

      And at the very core of this is humanity—Black Lives Matter. We matter. We matter. Black lives matter because they are lives. Because we are human. Because we eat. Because we breathe. Because he [Michael Brown] had a dream, because he made rap songs, they may have had cuss words in them. Yeah. He was human. And when we neglect to see that we end up where we are today.

      Activists like Yates have also used the claim of humanity to challenge the politics of respectability, a black middle-class ideology that has its origins in the turn-of-the-twentieth century response to black people’s loss of civil and political rights following Reconstruction’s collapse. The politics of respectability is invested in changing the personal behavior and culture of poor and working-class black people, rather than squarely addressing the structural barriers that keep them locked into a perpetual state of marginality.

      This appeal to humanity too has deep—though hidden—roots in the history of the black freedom struggle. The eighteenth-century anti-slavery campaign roused the consciousness of nations by pleading to those who kept them and profited from their bondage, “Am I Not a Man and a Brother?” The agitation of the anti-lynching campaigns of the first half of the twentieth century highlighted the inhumanness of mob violence against black people. Striking garbage workers fighting for a living wage in Memphis in 1968 carried with them placards proclaiming, “I am a Man.” But with the successful passage of major civil rights legislation—specifically the 1964 Civil Rights Act, 1965 Voting Rights Act, and the 1968 Fair Housing Act—and the expansion of these laws in subsequent decades, the language of civil rights came to dominate both the ideas and the strategies of leaders and organizations concerned with racial inequality.

      With Black Lives Matter, we now have a revival of these historical roots. Its recognition that all black lives deserve humanity, regardless of their gender, class, or sexual orientation, has breathed new life into the legacy of the black freedom struggle. Today’s new—and much larger—movement is also articulating the national struggle for racial justice as a broader one for human rights.

      ​In 1951, the “We Charge Genocide” campaign—which included William Patterson, Paul Robeson, W.E.B. Du Bois, Claudia Jones, and family members of victims of racial violence such as Josephine Grayson and Rosalie McGee—petitioned the United Nations to examine human rights abuses against black Americans. The petitioners sought to frame their claims—that African Americans were being persecuted, denied the right to vote, and “pauperized” because of their race—as a question of both black humanity and as a human rights issue: “[A]bove all we protest this genocide as human beings whose very humanity is denied and mocked.”

      The horrific evidence compiled for the petition, culled from stories in black newspapers and accounts collected by civil rights and labor organizations from 1945 to 1951, is eerily similar to the accounts we hear today. We may be more familiar with the evidence that petitioners document in the Jim Crow South, but the incidents recorded outside it are especially revealing. In many pockets of the urban North, the policing of black migrants was merely a parallel to the Jim Crow violence that terrorized them in the South.

      For instance, in February 1946 in Freeport, Long Island, a policeman shot and killed two unarmed black men, wounded a third, and arrested a fourth for “disorderly conduct.” The men had objected to being denied service in a café. The Freeport police, in a move that resembles the police’s response to protesters in Ferguson, “threw a cordon around the bus terminal and stationed men with tommy guns and tear gas there, saying that they wanted to ‘prevent a possible uprising of local Negroes.’”

      Three months later in Baltimore, police shot and killed Wilbur Bundley. “Nine witnesses stated that he was shot in the back while running,” the petition reports. In July, Lucy Gordy James, a member of a prominent family of “Negro business people in Detroit,” was “beaten severely” by three police officers. “She sued the officers for $10,000 damages, charging illegal arrest, assault, and maltreatment.” And in 1951 in Philadelphia, “forty police officers killed an unarmed 21-year-old Negro youth, Joseph Austin Conway, allegedly being sought for questioning in a robbery. He died in a hail of bullets while seeking to draw fire away from his family and neighbors.” This catalogue of disaster—to quote James Baldwin—is documented in over 200 pages.

      In the 1950s, Malcolm X and Martin Luther King also used the language of human rights to internationalize the issue of racial inequality in the United States. During his travels abroad, Malcolm X enlisted the assistance of heads of states in Africa and the Middle East to condemn the United States for their treatment of black Americans. He discovered that by framing the mistreatment of black Americans as an international human rights issue instead of a national civil rights one, “those grievances can then be brought into the United Nations and be discussed by people all over the world.” For him, as long as the discussion was centered on civil rights, “your only allies can be the people in the next community, many of whom are responsible for your grievance.” Malcolm X wanted “to come up with a program that would make our grievances international and make the world see that our problem was no longer a Negro problem or an American problem but a human problem.”

      In framing racial discrimination in human rights terms, the Black Lives Matter movement is today picking up the baton of civil rights activists before them. The parents of Trayvon Martin and Jordan Davis have raised the issue of discriminatory policing with members of the UN Committee on the Elimination of All Forms of Racial Discrimination in Geneva. The parents of Mike Brown along with representatives of organizations in Ferguson and Chicago traveled to Geneva to share information about their cases with the UN Committee Against Torture in November 2014. Brown’s parents submitted a statement to the Committee that read in part, “The killing of Mike Brown and the abandonment of his body in the middle of a neighborhood street is but an example of the utter lack of regard for, and indeed dehumanization of, black lives by law enforcement personnel.” Following its examination of the United States, the Committee Against Torture recommended that it undertake independent and prompt investigations into allegations of police brutality and expressed concerns about racial profiling and the “growing militarization of policing activities.” After it reviewed the human rights record of the United States this May, a review procedure of the UN Human Rights Council recommended strengthening legislation to combat racial discrimination and addressing excessive use of force by the police.

      When Anthony Scott saw the video of his brother Walter Scott being shot as he fled a North Charleston police officer, he remarked, “I thought that my brother was gunned down like an animal.” It is a curious thing for black people in the twenty-first century to once again have to claim their humanity. We live in a society where people are more likely to be convicted of animal cruelty than police officers are likely to be charged for the murder of unarmed black, brown, and poor people. But with the Black Lives Matter movement, black America’s struggle for human rights is once again gaining strength. Hopefully this time, we can win the more than century-long campaign that has demanded of our nation simply to see us as human.

      ----

      Fredrick C. Harris is professor of political science and director of the Center on African-American Politics and Society at Columbia University. He is the author of several books, including The Price of the Ticket: Barack Obama and the Rise and Decline of Black Politics. His essays have appeared in numerous publications, including the London Review of Books, the New York Times, and Transition.

    • 2.3 NYU Law School Press Release, “Lawyers and Activists Place the Black Lives Matter Movement in International Context” (2015)

      Lawyers and activists place the Black Lives Matter movement in an international human rights context (2015)

      On September 22, the Center for Human Rights and Global Justice (CHRGJ) and the Bernstein Institute for Human Rights invited activists and lawyers to discuss how the Black Lives Matter movement may be better served by an international human rights framework as opposed to a civil rights one. In a nod to the movement’s origins, the evening opened with a stage-side screen displaying a Twitter feed while moderator Philip Alston, John Norton Pomeroy Professor of Law and the UN special rapporteur for extreme poverty and human rights, posed the night’s fundamental question: For the Black Lives Matter movement, “how significant is the international component?”

      The panelists—who included Steven Hawkins ’88, executive director of Amnesty International USA; Meena Jagannath, co-founder of the Community Justice Project (CJP) in Miami; Gay McDougall, a member of the UN Committee on the Elimination of Racial Discrimination; Thenjiwe McHarris, formerly the Human Rights at Home campaign director at the US Human Rights Network; and Vince Warren, lawyer and executive director of the Center for Constitutional Rights—all favored bringing the conversation to the international level.

      Jagannath illustrated how having international bodies involved can deliver worthwhile results, however subtle. She shared the story of Israel Hernandez, an 18-year-old tased to death by a Miami police officer in 2013. Last year, after making little headway in Florida, the CJP brought the case to the UN Committee Against Torture—a move that even drew a response from the Fraternal Order of Police, the police union, which also wrote to the committee.

      Coincidentally, on the morning of the NYU Law panel, the Miami Beach Police Department released a revised policy regarding the use of Tasers. “The sense from the family and the people on the ground was that that was directly connected to the international pressure that they had been receiving,” Jagannath said.

      Nonetheless, panelists stressed that the Black Lives Matter movement is not solely about correcting policing practices or punishing a few officers. “It’s not a bad apple problem,” McHarris said. “It’s an institutional problem.”

      Both McDougall and Warren pointed out that using an international human rights framework allows lawyers, activists, and others to directly address the larger social problems at hand, going beyond the civil rights enshrined in American law. “The important paradigm shift is that human rights includes economic and social rights, which here in the US are seen as at best aspirations,” McDougall said. To believe that housing, food, clothing, and education “should be considered public goods that accrue to all of us because we are human, and the job of government is to make sure that our basic human needs are met—that’s a transformative thought in the US context.”

      Simply shifting the conversation from civil to human rights—never mind making institutional changes—poses a challenge in the US, as Hawkins noted. Here, human rights per se are discussed primarily in the academy, he said, whereas even in rural Mexico, he meets mothers of the disappeared who claim derechos humanos. He described this shift as crucial, saying it is essential to “aim beyond, frankly, the limitations of the US Constitution.”

      [Feel free to go to http://www.law.nyu.edu/news/black-lives-matter-movement-in-international-human-rights-context where you can find video of the event described here.]

  • 3 Individual Rights and "Militant Democracy" in Europe

    • 3.1 ECtHR, Refah Partisi (The Welfare Party) v. Turkey, Grand Chamber, App. Nos. 41340/98 et al. (2003), excerpt

      European Court of Human Rights (Grand Chamber)

      Refah Partisi v. Turkey

      App. Nos. 41340/98, 41342/98, 41343/98 and 41344/98 (2003)

      THE FACTS

      I. THE CIRCUMSTANCES OF THE CASE

      A. The applicants

      10. The first applicant, Refah Partisi (the Welfare Party – “Refah”), was a political party founded on 19 July 1983. …

      11. Refah took part in a number of general and local elections. … The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the material time). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path Party (Doğru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38% of the votes. The same poll predicted that Refah might obtain 67% of the votes in the general election to be held roughly four years later.

      12. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” (mihrak) of activities contrary to the principles of secularism. …

      23. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism.”…

      25. With regard to the merits, the Constitutional Court held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society….

      THE LAW

      I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

      49. The applicants alleged that the dissolution of Refah Partisi (the Welfare Party) and the temporary prohibition barring its leaders – including Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal – from holding similar office in any other political party had infringed their right to freedom of association, guaranteed by Article 11 of the Convention, the relevant parts of which provide:

      “1. Everyone has the right to freedom of peaceful assembly and to freedom of association ...

      2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. ...”

      A. Whether there was an interference

      50. The parties accepted that Refah’s dissolution and the measures which accompanied it amounted to an interference with the applicants’ exercise of their right to freedom of association. The Court takes the same view.

      B. Whether the interference was justified

      51. Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims….

      86. On the question of the relationship between democracy and the Convention, the Court has already ruled, in United Communist Party of Turkey and Others v. Turkey (judgment of 30 January 1998, Reports of Judgments and Decisions 1998-I, pp. 21-22, § 45), as follows:

      “Democracy is without doubt a fundamental feature of the European public order ...

      That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy by stating that the maintenance and further realisation of human rights and fundamental freedoms are best ensured on the one hand by an effective political democracy and on the other by a common understanding and observance of human rights ... The Preamble goes on to affirm that European countries have a common heritage of political tradition, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention ...; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society ...

      In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.”

      87. The Court has also confirmed on a number of occasions the primordial role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 of the Convention.

      In United Communist Party of Turkey and Others, cited above, it stated that it found even more persuasive than the wording of Article 11 the fact that political parties were a form of association essential to the proper functioning of democracy (p. 17, § 25). In view of the role played by political parties, any measure taken against them affected both freedom of association and, consequently, democracy in the State concerned (p. 18, § 31).

      It is in the nature of the role they play that political parties, the only bodies which can come to power, also have the capacity to influence the whole of the regime in their countries. By the proposals for an overall societal model which they put before the electorate and by their capacity to implement those proposals once they come to power, political parties differ from other organisations which intervene in the political arena.

      88. Moreover, the Court has previously noted that protection of opinions and the freedom to express them within the meaning of Article 10 of the Convention is one of the objectives of the freedoms of assembly and association enshrined in Article 11. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy (ibid., pp. 20-21, §§ 42-43).

      89. The Court considers that there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 23, § 49, and Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 26, § 37). Inasmuch as their activities form part of a collective exercise of the freedom of expression, political parties are also entitled to seek the protection of Article 10 of the Convention (see United Communist Party of Turkey and Others, cited above, pp. 20-21, § 43).

      (β) Democracy and religion in the Convention system

      90. For the purposes of the present case, the Court also refers to its case-law concerning the place of religion in a democratic society and a democratic State. It reiterates that, as protected by Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, § 31, and Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I).

      91. Moreover, in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, p. 18, § 33). The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. It also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 84, ECHR 2000-VII) and that it requires the State to ensure mutual tolerance between opposing groups (see, mutatis mutandis, Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, § 123, ECHR 2001-XII).

      92. The Court’s established case-law confirms this function of the State. It has held that in a democratic society the State may limit the freedom to manifest a religion, for example by wearing an Islamic headscarf, if the exercise of that freedom clashes with the aim of protecting the rights and freedoms of others, public order and public safety (see Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001-V).

      While freedom of religion is in the first place a matter of individual conscience, it also implies freedom to manifest one’s religion alone and in private or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists a number of forms which manifestation of a religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, it does not protect every act motivated or influenced by a religion or belief (see Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1209, § 27)….

      93. In applying the above principles to Turkey the Convention institutions have expressed the view that the principle of secularism is certainly one of the fundamental principles of the State which are in harmony with the rule of law and respect for human rights and democracy. An attitude which fails to respect that principle will not necessarily be accepted as being covered by the freedom to manifest one’s religion and will not enjoy the protection of Article 9 of the Convention (see the opinion of the Commission, expressed in its report of 27 February 1996, in Kalaç, cited above, p. 1215, § 44, and, mutatis mutandis, p. 1209, §§ 27-31).

      94. In order to perform its role as the neutral and impartial organiser of the exercise of religious beliefs, the State may decide to impose on its serving or future civil servants, who will be required to wield a portion of its sovereign power, the duty to refrain from taking part in the Islamic fundamentalist movement, whose goal and plan of action is to bring about the pre-eminence of religious rules …

      96. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State’s institutions, of the right to protect those institutions….

      98. [T]the Court considers that a political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention’s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47).

      99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy (see paragraphs 86-89 above), no one must be authorised to rely on the Convention’s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany (dec.), no. 39793/98, ECHR 2001-XII).

      In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history.

      100. The Court reiterates, however, that the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation. Although it is not for the Court to take the place of the national authorities, which are better placed than an international court to decide, for example, the appropriate timing for interference, it must exercise rigorous supervision embracing both the law and the decisions applying it, including those given by independent courts. Drastic measures, such as the dissolution of an entire political party and a disability barring its leaders from carrying on any similar activity for a specified period, may be taken only in the most serious cases (see the following judgments: United Communist Party of Turkey and Others, cited above, p. 22, § 46; Socialist Party and Others, cited above, p. 1258, § 50; and Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, § 45, ECHR 1999-VIII). Provided that it satisfies the conditions set out in paragraph 98 above, a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention….

      102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may “reasonably forestall the execution of such a policy, which is incompatible with the Convention’s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country’s democratic regime” (see the Chamber’s judgment, § 81).

      103. The Court takes the view that such a power of preventive intervention on the State’s part is also consistent with Contracting Parties’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non-State entities (see, for example, with regard to the State’s obligation to make private hospitals adopt appropriate measures to protect life, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d’être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy….

      116. The Court considers on this point that among the arguments for dissolution pleaded by Principal State Counsel at the Court of Cassation those cited by the Constitutional Court as grounds for its finding that Refah had become a centre of anti-constitutional activities can be classified into three main groups: (i) the arguments that Refah intended to set up a plurality of legal systems, leading to discrimination based on religious beliefs; (ii) the arguments that Refah intended to apply sharia to the internal or external relations of the Muslim community within the context of this plurality of legal systems; and (iii) the arguments based on the references made by Refah members to the possibility of recourse to force as a political method. The Court must therefore limit its examination to those three groups of arguments cited by the Constitutional Court.

      (a) The plan to set up a plurality of legal systems…

      119. The Court sees no reason to depart from the Chamber’s conclusion that a plurality of legal systems, as proposed by Refah, cannot be considered to be compatible with the Convention system. In its judgment, the Chamber gave the following reasoning:

      “70. ... the Court considers that Refah’s proposal that there should be a plurality of legal systems would introduce into all legal relationships a distinction between individuals grounded on religion, would categorise everyone according to his religious beliefs and would allow him rights and freedoms not as an individual but according to his allegiance to a religious movement.

      The Court takes the view that such a societal model cannot be considered compatible with the Convention system, for two reasons.

      Firstly, it would do away with the State’s role as the guarantor of individual rights and freedoms and the impartial organiser of the practice of the various beliefs and religions in a democratic society, since it would oblige individuals to obey, not rules laid down by the State in the exercise of its above-mentioned functions, but static rules of law imposed by the religion concerned. But the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention (see, mutatis mutandis, Airey v. Ireland,  judgment of 9 October 1979, Series A no. 32, p. 14, § 25).

      Secondly, such a system would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. A difference in treatment between individuals in all fields of public and private law according to their religion or beliefs manifestly cannot be justified under the Convention, and more particularly Article 14 thereof, which prohibits discrimination. Such a difference in treatment cannot maintain a fair balance between, on the one hand, the claims of certain religious groups who wish to be governed by their own rules and on the other the interest of society as a whole, which must be based on peace and on tolerance between the various religions and beliefs (see, mutatis mutandis, the judgment of 23 July 1968 in the “Belgian linguistic” case, Series A no. 6, pp. 33-35, §§ 9 and 10, and Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, pp. 35-36, § 72).

      (b) Sharia…

      123. The Court concurs in the Chamber’s view that sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention:

      “72. Like the Constitutional Court, the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable. Principles such as pluralism in the political sphere or the constant evolution of public freedoms have no place in it. The Court notes that, when read together, the offending statements, which contain explicit references to the introduction of sharia, are difficult to reconcile with the fundamental principles of democracy, as conceived in the Convention taken as a whole. It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts. ... In the Court’s view, a political party whose actions seem to be aimed at introducing sharia in a State party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention.”

      124. The Court must not lose sight of the fact that in the past political movements based on religious fundamentalism have been able to seize political power in certain States and have had the opportunity to set up the model of society which they had in mind. It considers that, in accordance with the Convention’s provisions, each Contracting State may oppose such political movements in the light of its historical experience….

      (c) Sharia and its relationship with the plurality of legal systems proposed by Refah

      126. The Court will next examine the applicants’ argument that the Chamber contradicted itself in holding that Refah supported introducing both a plurality of legal systems and sharia simultaneously.

      It takes note of the Constitutional Court’s considerations concerning the part played by a plurality of legal systems in the application of sharia in the history of Islamic law. These showed that sharia is a system of law applicable to relations between Muslims themselves and between Muslims and the adherents of other faiths. In order to enable the communities owing allegiance to other religions to live in a society dominated by sharia, a plurality of legal systems had also been introduced by the Islamic theocratic regime during the Ottoman Empire, before the Republic was founded.

      127. The Court is not required to express an opinion in the abstract on the advantages and disadvantages of a plurality of legal systems. It notes, for the purposes of the present case, that – as the Constitutional Court observed – Refah’s policy was to apply some of sharia’s private-law rules to a large part of the population in Turkey (namely Muslims), within the framework of a plurality of legal systems. Such a policy goes beyond the freedom of individuals to observe the precepts of their religion, for example by organising religious wedding ceremonies before or after a civil marriage (a common practice in Turkey) and according religious marriage the effect of a civil marriage (see, mutatis mutandis, Serif v. Greece, no. 38178/97, § 50, ECHR 1999-IX). This Refah policy falls outside the private sphere to which Turkish law confines religion and suffers from the same contradictions with the Convention system as the introduction of sharia (see paragraph 125 above).

      128. Pursuing that line of reasoning, the Court rejects the applicants’ argument that prohibiting a plurality of private-law systems in the name of the special role of secularism in Turkey amounted to establishing discrimination against Muslims who wished to live their private lives in accordance with the precepts of their religion.

      It reiterates that freedom of religion, including the freedom to manifest one’s religion by worship and observance, is primarily a matter of individual conscience, and stresses that the sphere of individual conscience is quite different from the field of private law, which concerns the organisation and functioning of society as a whole.

      It has not been disputed before the Court that in Turkey everyone can observe in his private life the requirements of his religion. On the other hand, Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession). The freedom to enter into contracts cannot encroach upon the State’s role as the neutral and impartial organiser of the exercise of religions, faiths and beliefs (see paragraphs 91‑92 above).

      (d) The possibility of recourse to force…

      130. The Court considers that, whatever meaning is ascribed to the term “jihad” used in most of the speeches mentioned above (whose primary meaning is holy war and the struggle to be waged until the total domination of Islam in society is achieved), there was ambiguity in the terminology used to refer to the method to be employed to gain political power. In all of these speeches the possibility was mentioned of resorting “legitimately” to force in order to overcome various obstacles Refah expected to meet in the political route by which it intended to gain and retain power.

      131. Furthermore, the Court endorses the following finding of the Chamber:

      “74. ...

      While it is true that [Refah’s] leaders did not, in government documents, call for the use of force and violence as a political weapon, they did not take prompt practical steps to distance themselves from those members of [Refah] who had publicly referred with approval to the possibility of using force against politicians who opposed them. Consequently, Refah’s leaders did not dispel the ambiguity of these statements about the possibility of having recourse to violent methods in order to gain power and retain it (see, mutatis mutandis, Zana v. Turkey, judgment of 25 November 1997, Reports 1997-VII, p. 2549, § 58).”

      132. In making an overall assessment of the points it has just listed above in connection with its examination of the question whether there was a pressing social need for the interference in issue in the present case, the Court finds that the acts and speeches of Refah’s members and leaders cited by the Constitutional Court were imputable to the whole of the party, that those acts and speeches revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place. In view of the fact that these plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to Contracting States, may reasonably be

      135. Consequently, following a rigorous review to verify that there were convincing and compelling reasons justifying Refah’s dissolution and the temporary forfeiture of certain political rights imposed on the other applicants, the Court considers that those interferences met a “pressing social need” and were “proportionate to the aims pursued”. It follows that Refah’s dissolution may be regarded as “necessary in a democratic society” within the meaning of Article 11 § 2.

      136. Accordingly, there has been no violation of Article 11 of the Convention.

  • 4 Religious Freedom and "Living Together"

    • 4.1 ECtHR, Lautsi and Others v. Italy, Grand Chamber Decision, App. No. 30814/06 (2011), excerpt

      European Court of Human Rights (Grand Chamber)

      Lautsi v. Italy, App. No, 30814/06 (2011)

       

      THE FACTS

      I.  THE CIRCUMSTANCES OF THE CASE

      10.  The first applicant and her two sons, Dataico and Sami Albertin, also applicants, were born in 1957, 1988 and 1990 respectively. They are resident in Italy. In the school year 2001-2002 Dataico and Sami attended the Istituto comprensivo statale Vittorino da Feltre, a State school in Abano Terme. A crucifix was fixed to the wall in each of the school's classrooms.

      11.  On 22 April 2002, during a meeting of the school's governors, the first applicant's husband raised the question of the presence of religious symbols in the classrooms, particularly mentioning crucifixes, and asked whether they ought to be removed. On 27 May 2002, by ten votes to two with one abstention, the school's governors decided to keep religious symbols in classrooms.

      12.  On 23 July 2002 the first applicant contested that decision in the Veneto Administrative Court, complaining of an infringement of the principle of secularism, relying in that connection on Articles 3 (principle of equality) and 19 (religious freedom) of the Italian Constitution and Article 9 of the Convention, and on the principle of the impartiality of public administrative authorities (Article 97 of the Constitution).

      13.  On 3 October 2002 the Minister of Education, Universities and Research adopted Directive no. 2666, instructing the competent services of his Ministry to take the necessary measures to see to it that school governors ensured the presence of crucifixes in classrooms (see paragraph 24 below).

      On 30 October 2003 the Minister joined the proceedings brought by the first applicant. He argued that her application was ill-founded since the presence of crucifixes in the classrooms of publicly run schools was based on Article 118 of royal decree no. 965 of 30 April 1924 (internal regulations of middle schools) and Article 119 of royal decree no. 1297 of 26 April 1928 (approval of the general regulations governing primary education; see paragraph 19 below).

      14.  By a decision of 14 January 2004 the Administrative Court referred to the Constitutional Court the question of the constitutionality, with regard to the principle of the secular character of the State and Articles 2, 3, 7, 8, 19 and 20 of the Constitution, of Articles 159 and 190 of legislative decree no. 297 of 16 April 1994 (approving the single text bringing together the legislative provisions in force regarding education and schools), in their “specifications” resulting from Articles 118 and 119 of the above-mentioned royal decrees, and of Article 676 of the same legislative decree.

      Articles 159 and 190 make municipalities responsible for purchasing and supplying the furniture of primary and middle schools. Article 119 of the 1928 decree specifies that each classroom must have a crucifix and Article 118 of the 1924 decree that each classroom must have a portrait of the king and a crucifix. Article 676 of legislative decree no. 297 stipulates that provisions not included in the single text remain in force, “with the exception of provisions contrary to or incompatible with the single text, which are repealed”.

      By a decision of 15 December 2004 (no. 389), the Constitutional Court declared the question as to constitutionality manifestly inadmissible, on the ground that it was in reality directed towards texts which, not having the status of law, but only that of regulations (the above-mentioned Articles 118 and 119), could not form the subject of a review of constitutionality….

       

      THE LAW

      I.  ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 AND ARTICLE 9 OF THE CONVENTION

      29.  The applicants complained of the fact that crucifixes were affixed to the wall in the classrooms of the State school attended by the second and third applicants. They argued that this infringed the right to education, guaranteed by Article 2 of Protocol No. 1 in the following terms:

      “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

      They also contended that these facts infringed their right to the freedom of thought, conscience and religion enshrined in Article 9 of the Convention, which provides as follows:

      “1.  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.

      2.  Freedom to manifest one's religion or beliefs shall be 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 for the protection of the rights and freedoms of others.”

      A.  The Chamber's judgment

      30.  In its judgment of 3 November 2009 the Chamber held that there had been a violation of Article 2 of Protocol No. 1 taken together with Article 9 of the Convention.

      31.  First of all, the Chamber derived from the principles relating to the interpretation of Article 2 of Protocol No. 1 established in the Court's case-law an obligation on the State to refrain from imposing beliefs, even indirectly, in places where persons were dependent on it or in places where they were particularly vulnerable, emphasising that the schooling of children was a particularly sensitive area in that respect.

      The Court went on to say that among the plurality of meanings the crucifix might have the religious meaning was predominant. It accordingly considered that the compulsory and highly visible presence of crucifixes in classrooms was capable not only of clashing with the secular convictions of the first applicant, whose children attended at that time a State school, but also of being emotionally disturbing for pupils of non-Christian religions or those who professed no religion. On that last point, the Chamber emphasised that the “negative” freedom of religion was not limited to the absence of religious services or religious education: it extended to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. It added that this “negative right” deserved special protection if it was the State which expressed a belief and dissenters were placed in a situation from which they could not extract themselves if not by making disproportionate efforts and sacrifices.

      According to the Chamber, the State had a duty to uphold confessional neutrality in public education, where school attendance was compulsory regardless of religion, and which had to seek to inculcate in pupils the habit of critical thought. It observed in addition that it could not see how the display in State-school classrooms of a symbol that it was reasonable to associate with the majority religion in Italy could serve the educational pluralism which was essential for the preservation of “democratic society” within the Convention meaning of that term.

      32.  The Chamber concluded that “the compulsory display of a symbol of a particular faith in the exercise of public authority in relation to specific situations subject to governmental supervision, particularly in classrooms, restrict[ed] the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe”. The practice infringed those rights because “the restrictions [were] incompatible with the State's duty to respect neutrality in the exercise of public authority, particularly in the field of education” (§ 57 of the judgment)….

       

      C.  Submissions of the third-party interveners

      1.  The Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino

      47.  In their joint observations submitted at the hearing, the Governments of Armenia, Bulgaria, Cyprus, the Russian Federation, Greece, Lithuania, Malta and the Republic of San Marino indicated that in their view the Chamber's reasoning had been based on a misunderstanding of the concept of “neutrality”, which the Chamber had confused with “secularism”. They pointed out that there was a huge diversity of Church-State arrangements in Europe and that more than half the population of Europe lived in non-secular States. They added that State symbols inevitably had a place in state education and that many of these had a religious origin, the Cross – which was both a national and a religious symbol – being the most visible example. In their view, in non-secular European States the presence of religious symbols in the public space was widely tolerated by the secular population as part of national identity. States should not have to divest themselves of part of their cultural identity simply because that identity was of religious origin. The position adopted by the Chamber was not an expression of the pluralism manifest in the Convention system, but an expression of the values of a secular State. To extend it to the whole of Europe would represent the “Americanisation” of Europe in that a single and unique rule and a rigid separation of Church and State would be binding on everyone.

      In their submission, favouring secularism was a political position that, whilst respectable, was not neutral. Accordingly, in the educational sphere a State that supported the secular as opposed to the religious was not being neutral. Similarly, removing crucifixes from classrooms where they had always been would not be devoid of educational consequences. In reality, whether the State opted to allow or prohibit the presence of crucifixes in classrooms, the important factor was the degree to which the curriculum contextualised and taught children tolerance and pluralism.

      The intervening Governments acknowledged that there might be circumstances where the arrangements by the State were unacceptable. The burden of proof should remain on the individual, however, and the Court should intervene only in extreme cases….

      68.  The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.

      As regards the Government's opinion on the meaning of the crucifix, the Court notes that the Consiglio di Stato and the Court of Cassation have diverging views in that regard and that the Constitutional Court has not given a ruling (see paragraphs 16 and 23 above). It is not for the Court to take a position regarding a domestic debate among domestic courts.

      69.  The fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions (see paragraphs 61-62 above).

      That applies to organisation of the school environment and to the setting and planning of the curriculum (as the Court has already pointed out: see essentially the judgments cited above in the cases of Kjeldsen, Busk Madsen and Pedersen, §§ 50-53; Folgerø, § 84; and Zengin, §§ 51-52; paragraph 62 above). The Court therefore has a duty in principle to respect the Contracting States' decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination (ibid.).

      70.  The Court concludes in the present case that the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools (see paragraphs 26-28 above) speaks in favour of that approach.

      This margin of appreciation, however, goes hand in hand with European supervision (see, for example, mutatis mutandis, Leyla Şahin, cited above, § 110), the Court's task in the present case being to determine whether the limit mentioned in paragraph 69 above has been exceeded.

      71.  In that connection, it is true that by prescribing the presence of crucifixes in State-school classrooms – a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity – the regulations confer on the country's majority religion preponderant visibility in the school environment.

      That is not in itself sufficient, however, to denote a process of indoctrination on the respondent State's part and establish a breach of the requirements of Article 2 of Protocol No. 1.

      The Court refers on this point, mutatis mutandis, to the previously cited Folgerø and Zengin judgments. In the Folgerø case, in which it was called upon to examine the content of “Christianity, religion and philosophy” (KRL) lessons, it found that the fact that the syllabus gave a larger share to knowledge of the Christian religion than to that of other religions and philosophies could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. It explained that in view of the place occupied by Christianity in the history and tradition of the respondent State – Norway – this question had to be regarded as falling within the margin of appreciation left to it in planning and setting the curriculum (see Folgerø, cited above, § 89). It reached a similar conclusion in the context of “religious culture and ethics” classes in Turkish schools, where the syllabus gave greater prominence to knowledge of Islam on the ground that, notwithstanding the State's secular nature, Islam was the majority religion practised in Turkey (see Zengin, cited above, § 63).

      72.  Furthermore, a crucifix on a wall is an essentially passive symbol and this point is of importance in the Court's view, particularly having regard to the principle of neutrality (see paragraph 60 above). It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities (see on these points Folgerø and Zengin, cited above, § 94 and § 64 respectively).

      73.  The Court observes that, in its judgment of 3 November 2009, the Chamber agreed with the submission that the display of crucifixes in classrooms would have a significant impact on the second and third applicants, aged eleven and thirteen at the time. The Chamber found that, in the context of public education, crucifixes, which it was impossible not to notice in classrooms, were necessarily perceived as an integral part of the school environment and could therefore be considered “powerful external symbols” within the meaning of the decision in Dahlab, cited above (see §§ 54 and 55 of the judgment).

      The Grand Chamber does not agree with that approach. It considers that that decision cannot serve as a basis in this case because the facts of the two cases are entirely different.

      It points out that the case of Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.

      74.  Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity (see the comparative-law information set out in Zengin, cited above, § 33). Secondly, according to the indications provided by the Government, Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were “often celebrated” in schools; and optional religious education could be organised in schools for “all recognised religious creeds” (see paragraph 39 above). Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

      In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency, or claim that the second and third applicants had ever experienced a tendentious reference to that presence by a teacher in the exercise of his or her functions.

      75.  Lastly, the Court notes that the first applicant retained in full her right as a parent to enlighten and advise her children, to exercise in their regard her natural functions as educator and to guide them on a path in line with her own philosophical convictions (see, in particular, Kjeldsen, Busk Madsen and Pedersen and Valsamis, cited above, §§ 54 and 31 respectively).

      76.  It follows from the foregoing that, in deciding to keep crucifixes in the classrooms of the State school attended by the first applicant's children, the authorities acted within the limits of the margin of appreciation left to the respondent State in the context of its obligation to respect, in the exercise of the functions it assumes in relation to education and teaching, the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

      77.  The Court accordingly concludes that there has been no violation of Article 2 of Protocol No. 1 in respect of the first applicant. It further considers that no separate issue arises under Article 9 of the Convention….

       

      [For fun, read Judge Bonello’s concurrence, recalling his concurrence in Al-Skeini …]

       

      CONCURRING OPINION OF JUDGE BONELLO

      1.1  A court of human rights cannot allow itself to suffer from historical Alzheimer's. It has no right to disregard the cultural continuum of a nation's flow through time, nor to ignore what, over the centuries, has served to mould and define the profile of a people. No supranational court has any business substituting its own ethical mock-ups for those qualities that history has imprinted on the national identity. On a human rights court falls the function of protecting fundamental rights, but never ignoring that “customs are not passing whims. They evolve over time, harden over history into cultural cement. They become defining, all-important badges of identity for nations, tribes, religions, individuals”.

      1.2  A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

      1.3  I believe that before joining any crusade to demonise the crucifix, we should start by placing the presence of that emblem in Italian schools in its rightful historical perspective. For many centuries, virtually the only education in Italy was provided by the Church, its religious orders and organisations – and very few besides. Many, if not most schools, colleges, universities and other institutes of learning in Italy had been founded, funded, or run by the Church, its members or its offshoots. The milestones of history turned education and Christianity into almost interchangeable notions, and because of this, the age-old presence of the crucifix in Italian schools should come as no shock or surprise. In fact, its absence would have come as a surprise and a shock.

      1.4  Until relatively recently, the “secular” State had hardly bothered with education, and, by default, had delegated that primary function to Christian institutions. Only slowly did the State start assuming its responsibilities to educate and to offer the population some alternatives to a virtual religious monopoly on education. The presence of the crucifix in Italian schools only testifies to this compelling and millennial historical reality – it could loosely be said that it has been there since schools have been there. Now, a court in a glass box a thousand kilometres away has been engaged to veto overnight what has survived countless generations. The Court has been asked to be an accomplice in a major act of cultural vandalism. I believe William Faulkner went to the core of the issue: the past is never dead. In fact it is not even past. Like it or not, the perfumes and the stench of history will always be with you.

      1.5  It is uninformed nonsense to assert that the presence of the crucifix in Italian schools bears witness to a reactionary fascist measure imposed, in between gulps of castor oil, by Signor Mussolini. His circulars merely took formal notice of a historical reality that had predated him by several centuries and, pace Ms Lautsi's anti-crucifix vitriol, may still survive him for a long time. This Court ought to be ever cautious in taking liberties with other peoples' liberties, including the liberty of cherishing their own cultural imprinting. Whatever that is, it is unrepeatable. Nations do not fashion their histories on the spur of the moment….

      4.1  Very recently, this Court was called upon to determine whether a ban ordered by the Turkish authorities on the distribution of Guillaume Apollinaire's novel Les onze mille verges could be justified in a democratic society. That novel would only fail to qualify as fierce pornography through the most lavish disregard of contemporary standards of morality.[3] Yet the Court manfully saved that smear of transcendental smut on the ground that it formed part of European cultural heritage.[4]

      4.2  It would have been quite bizarre, in my view, for this Court to protect and redeem an under-the-counter, over-the-borderline discharge of nauseous obscenity on the ground of its distinctly faint “European heritage” merit, and, in the same breath, deny European heritage value to an emblem recognised over the centuries by millions of Europeans as a timeless symbol of redemption through universal love.

    • 4.2 ECtHR, S.A.S. v. France, Grand Chamber, App. No, 43835/11 (2014), excerpt

      ECtHR, S.A.S. v. France, (Grand Chamber)

      App. No. 43835/11 (2015)

       

      THE FACTS

      I.  THE CIRCUMSTANCES OF THE CASE

      10.  The applicant is a French national who was born in 1990 and lives in France.

      11.  In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.

      12.  The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.

      13.  The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.

      14.  Since 11 April 2011, the date of entry into force of Law no. 2010-1192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places.

      II.  RELEVANT DOMESTIC LAW AND PRACTICE

      A.  The Law of 11 October 2010 “prohibiting the concealment of one’s face in public places”

      2.  Relevant provisions of Law no. 2010-1192

      28.  Sections 1 to 3 (in force since 11 April 2011) of Law no. 20101192 of 11 October 2010 “prohibiting the concealment of one’s face in public places” read as follows:

      Section 1

      “No one may, in public places, wear clothing that is designed to conceal the face.”

      Section 2

      “I. - For the purposes of section 1 hereof, ‘public places’ comprise the public highway and any places open to the public or assigned to a public service.

      II. - The prohibition provided for in section 1 hereof shall not apply if the clothing is prescribed or authorised by primary or secondary legislation, if it is justified for health or occupational reasons, or if it is worn in the context of sports, festivities or artistic or traditional events.”

      Section 3

      “Any breach of the prohibition laid down in section 1 hereof shall be punishable by a fine, at the rate applying to second-class petty offences (contraventions) [150 euros maximum].

      An obligation to follow a citizenship course, as provided at paragraph 8o of Article 131-16 of the Criminal Code, may be imposed in addition to or instead of the payment of a fine.”

      The provisions for the obligation to follow a citizenship course can be found in Articles R. 131-35 to R. 131-44 of the Criminal Code. The purpose of the course is to remind the convicted persons of the Republican values of tolerance and respect for the dignity of the human being and to make them aware of their criminal and civil liability, together with the duties that stem from life in society. It also seeks to further the person’s social integration (Article R. 13135).…

      37.  The Commissioner for Human Rights of the Council of Europe, published the following “Viewpoint” (see Human rights in Europe: no grounds for complacency. Viewpoints by Thomas Hammarberg, Council of Europe Commissioner for Human Rights, Council of Europe Publishing, 2011, pp. 39-43):

      “Prohibition of the burqa and the niqab will not liberate oppressed women, but might instead lead to their further exclusion and alienation in European societies. A general ban on such attire constitutes an ill-advised invasion of individual privacy and, depending on its terms, also raises serious questions about whether such legislation is compatible with the European Convention on Human Rights.

      Two rights in the Convention are particularly relevant to this debate about clothing. One is the right to respect for one’s private life and personal identity (Article 8). The other is the freedom to manifest one’s religion or belief ‘in worship, teaching, practice and observance’ (Article 9).

      Both Convention articles specify that these rights can only be subject 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 for the protection of the rights and freedoms of others.

      Those who have argued for a general ban of the burqa and the niqab have not managed to show that these garments in any way undermine democracy, public safety, order or morals. The fact that a very small number of women wear such clothing has made such proposals even less convincing.

      Nor has it been possible to prove that women wearing this attire are victims of more gender repression than others. Those interviewed in the media have presented a diversity of religious, political and personal arguments for their decision to dress as they do. There may of course be cases where women are under undue pressure to dress in a certain way – but it has not been shown that a ban would be welcomed by them.

      There is of course no doubt that the status of women is an acute problem – and that this problem may be particularly true in relation to some religious communities. This needs to be discussed, but prohibiting the supposed symptoms – such as clothing – is not the way to do it. Dress, after all, may not reflect specific religious beliefs, but the exercise of broader cultural expression.

      It is right and proper to react strongly against any regime ruling that women must wear these garments. This is in clear contravention of the Convention articles cited above, and is unacceptable, but it is not remedied by banning the same clothing in other countries.

      The consequences of decisions in this area must be assessed. For instance, the suggestion that women dressed in a burqa or niqab be banned from public institutions like hospitals or government offices may result in these women avoiding such places entirely, and that is clearly wrong.

      It is unfortunate that in Europe, public discussion of female dress, and the implications of certain attire for the subjugation of women, has almost exclusively focused on what is perceived as Muslim dress. The impression has been given that one particular religion is being targeted. Moreover, some arguments have been clearly Islamophobic in tenor and this has certainly not built bridges nor encouraged dialogue….

       

      THE LAW…

      IV.  ALLEGED VIOLATION OF ARTICLES 8, 9 AND 10 OF THE CONVENTION, TAKEN SEPARATELY AND TOGETHER WITH ARTICLE 14

      69.  The applicant complained … of a violation of Article 14 of the Convention taken together with Article 3. Article 14 reads as follows:

      “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”...

      74.  The applicant complained for the same reasons of a violation of her right to respect for her private life, her right to freedom to manifest her religion or beliefs and her right to freedom of expression, together with discrimination in the exercise of these rights. She relied on Articles 8, 9 and 10 of the Convention, taken separately and together with the above-cited Article 14….

      B.  Merits

      1.  The parties’ submissions

      (a)  The applicant

      76.  In the applicant’s submission, she was born in Pakistan and her family belongs to a Sunni cultural tradition in which it is customary and respectful for women to wear a full-face veil in public. She claimed to have sustained a serious interference with the exercise of her rights under Article 9, as the Law of 11 October 2010, which sought to prohibit Muslim women from wearing the full-face veil in public places, prevented her from manifesting her faith, from living by it and from observing it in public. She added that, whilst the interference was “prescribed by law”, it did not pursue any of the legitimate aims listed in the second paragraph of that provision and was not “necessary in a democratic society”.

      77.  The applicant began by observing that this interference could not be said to have the legitimate aim of “public safety” as it was not a measure intended to address specific safety concerns in places of high risk such as airports, but a blanket ban applying to almost all public places. As to the Government’s argument that it sought to ensure respect for the minimum requirements of life in society, because the reciprocal exposure of faces was fundamental in French society, the applicant objected that it failed to take into account the cultural practices of minorities which did not necessarily share this philosophy or the fact that there were forms of communication other than visual, and that in any event this bore no relation to the idea of imposing criminal sanctions to prevent people from veiling their faces in public. She submitted, moreover, that the Government’s assertion that for women to cover their faces was incompatible with the principle of gender equality was simplistic. She argued that, according to a well-established feminist position, the wearing of the veil often denoted women’s emancipation, self-assertion and participation in society, and that, as far as she was concerned, it was not a question of pleasing men but of satisfying herself and her conscience. Furthermore, it could not be maintained that because of wearing the veil the women concerned were denied the right to exist as individuals in public, when in the majority of cases it was worn voluntarily and without any proselytising motive. She added that other member States with a strong Muslim population did not prohibit the wearing of the full-face veil in public places. She also found it ironic that an abstract idea of gender equality could run counter to the profoundly personal choice of women who decided to wear veils, and contended that imposing legal sanctions exacerbated the inequality that was supposed to be addressed. Lastly, she took the view that in claiming that the prohibition had the legitimate aim of “respect for human dignity” the Government were justifying the measure by the abstract assumption, based on stereotyping and chauvinistic logic, that women who wore veils were “effaced”.

      78.  Under the heading of “necessity”, the applicant argued that a truly free society was one which could accommodate a wide variety of beliefs, tastes, pursuits, customs and codes of conduct, and that it was not for the State to determine the validity of religious beliefs. In her view, the prohibition on wearing the full-face veil in public and the risk of criminal sanctions sent out a sectarian message and discouraged the women concerned from socialising. She pointed out that the Human Rights Committee, in its General Comment no. 28, had found that any regulation of clothing that women could wear in public might breach the principle of equal rights for men and women, and in its decision in Raihon Hudoyberganova v. Uzbekistan (cited above), had observed that the freedom to manifest one’s religion encompassed the right to wear clothes or attire in public which were in conformity with the individual’s faith or religion. She further observed that, whilst the Law of 11 October 2010 had been passed almost unanimously, the above-cited cases of Dudgeon, Norris and Modinos showed that a measure might have wide political support and yet not be “necessary in a democratic society”.

      Moreover, even supposing that the aims pursued were legitimate, the impugned prohibition could not fulfil that condition where they might be achieved by less restrictive means. Thus, to address the questions of public safety, it would be sufficient to implement identity checks at high-risk locations, as in the situations examined by the Court in the cases of Phull v. France ((dec.), no. 35753/03, ECHR 2005I) and El Morsli v. France ((dec.), no. 15585/06, 4 March 2008). As to the aim of guaranteeing respect for human dignity, it was still necessary to weigh up the competing interests: those of members of the public who disapproved of the wearing of the veil; and those of the women in question who, like the applicant, were forced to choose between acting in a manner contrary to their beliefs, staying at home or breaking the law. The rights of the latter were much more seriously affected than those of the former. In the applicant’s view, if it were considered, as the Government argued, that it was necessary to criminalise not only the coercion of another into veiling but also the fact of voluntarily wearing the veil, on the grounds that women might be reluctant to denounce those who coerced them and that constraint might be diffuse in nature, that would mean disregarding the position or motivation of women who chose to cover their faces and therefore excluding any examination of proportionality. Such an attitude was not only paternalistic, but it also reflected an intention to punish the very women who were supposed to be protected from patriarchal pressure. Lastly, the applicant found irrelevant the Government’s comment that freedom to dress according to one’s wishes remained very broad in France and that the ban did not apply in places of worship open to the public, pointing out that her beliefs precisely required her to cover her face and that it should be possible to manifest one’s religion in public, not only in places of worship…

      80.  The applicant further argued that the ban on wearing clothing designed to conceal the face in public, which undoubtedly targeted the burqa, generated discrimination in breach of Article 14 on grounds of sex, religion and ethnic origin, to the detriment of Muslim women who, like her, wore the full-face veil. In her view this was indirect discrimination between Muslim women whose beliefs required them to wear the full-face veil and other Muslim women, and also between them and Muslim men. The exception provided for by the Law, according to which the ban did not apply if the clothing was worn in the context of “festivities or artistic or traditional events” was also, in her view, discriminatory, in that it created an advantage for the Christian majority: it allowed Christians to wear in public clothing that concealed their face in the context of Christian festivities or celebrations (Catholic religious processions, carnivals or rituals, such as dressing up as Santa Claus) whereas Muslim women who wished to wear the full-face veil in public remained bound by the ban even during the month of Ramadan.

      (b)  The Government

      81.  The Government admitted that, even though it was formulated in general terms, the ban introduced by the Law of 11 October 2010 could be seen as a “limitation”, within the meaning of Article 9 § 2 of the Convention, on the freedom to manifest one’s religion or beliefs. They argued, however, that the limitation pursued legitimate aims and that it was necessary, in a democratic society, for the fulfilment of those aims.

      82.  In the Government’s submission, the first of those aims was to ensure “public safety”. The ban satisfied the need to identify individuals so as to prevent danger for the safety of persons and property and to combat identity fraud. The second of those aims concerned the “protection of the rights and freedoms of others” by ensuring “respect for the minimum set of values of an open and democratic society”. The Government mentioned three values in this connection. First, the observance of the minimum requirements of life in society. In the Government’s submission, the face plays a significant role in human interaction: more so than any other part of the body, the face expresses the existence of the individual as a unique person, and reflects one’s shared humanity with the interlocutor, at the same time as one’s otherness. The effect of concealing one’s face in public places is to break the social tie and to manifest a refusal of the principle of “living together” (le “vivre ensemble”). The Government further argued that the ban sought to protect equality between men and women, as to consider that women, solely on the ground that they were women, must conceal their faces in public places, amounted to denying them the right to exist as individuals and to reserving the expression of their individuality to the private family space or to an exclusively female space. Lastly, it was a matter of respect for human dignity, since the women who wore such clothing were therefore “effaced” from public space. In the Government’s view, whether such “effacement” was desired or suffered, it was necessarily dehumanising and could hardly be regarded as consistent with human dignity.

      On the question of gender equality, the Government expressed surprise at the applicant’s statements to the effect that the practice of wearing the full-face veil often denoted the woman’s emancipation, self-assertion and participation in society, and they did not agree with the highly positive presentation of that practice by the applicant and the intervening non-governmental organisations. They took note of the study reports presented by two of the third-party interveners, showing that women who wore or used to wear the full-face veil did so voluntarily and those that had given up the practice had done so mainly as a result of public hostility. They observed, however, that those studies were based on only a small sample group of women (twenty-seven in one case, thirty-two in the other) recruited using the “snowball method”. That method was not very reliable, as it consisted in targeting various people fitting the subject profile and then, through them, reaching a greater number of people who generally shared the same views. They concluded that the reports in question provided only a very partial view of reality and that their scientific relevance had to be viewed with caution.

      83.  As regards the necessity and proportionality of the limitation, the Government argued that the Law of 11 October 2010 had been passed both in the National Assembly and the Senate by the unanimous vote of those cast (less one vote), following a wide democratic consultation involving civil society. They pointed out that the ban in issue was extremely limited in terms of its subject matter, as only concealment of the face was prohibited, irrespective of the reason, and everyone remained free, subject to that sole restriction, to wear clothing expressing a religious belief in public. They added that the Law was necessary for the defence of the principles underlying its enactment. They indicated in this connection that to restrict sanctions only to those coercing someone else to cover their face would not have been sufficiently effective because the women concerned might have hesitated to report it and coercion could always be diffuse in nature. They further pointed out that the Court afforded States a wide margin of appreciation when it came to striking a balance between competing private and public interests, or where a private interest was in conflict with other rights secured by the Convention (they referred to Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007I). They further took the view that the penalties stipulated were light – a mere fine of 150 euros or a citizenship course. They noted that both the Constitutional Council and the Court of Cassation had recognised the “necessity” of the Law….

      85.  Lastly, the Government found the applicant “particularly ill-placed to consider herself a victim of discrimination on account of her sex”, as one of the essential objectives of the impugned Law was to combat that type of discrimination as a result of women being effaced from public space through the wearing of the full-face veil. In their view, the assertion that the Law had been based on a stereotype whereby Muslim women were submissive was unfounded and caricatural: firstly, because the Law did not target Muslim women; and secondly, because the social effacement manifested by the wearing of the burqa or niqab was “hardly compatible with the affirmation of a social existence”. In their opinion, it was not possible to infer from Article 14 of the Convention a right to place oneself in a position of discrimination. As to the contention that one of the effects of the Law would be to dissuade the women concerned from going to public places and to confine them at home, it was particularly futile in the instant case since the applicant claimed that she wore this clothing only voluntarily and occasionally.

           The Government added that the Law did not create any discrimination against Muslim women either. They observed in this connection that the practice of wearing the full-face veil was a recent development, quite uncommon in France, and that it had been criticised on many occasions by high-profile Muslims. The prohibition in fact applied regardless of whether or not the reason for concealing the face was religious, and regardless of the sex of the individual. Lastly, they pointed out that the fact that certain individuals who wished to adopt behaviour which they justified by their beliefs, whether or not religious, were prevented from doing so by a statutory prohibition could not in itself be considered discriminatory where the prohibition had a reasonable basis and was proportionate to the aim pursued. They referred on this point to their previous arguments….

      3.  The Court’s assessment…

      (iv)  Whether the measure is necessary in a democratic society

      (α)  General principles concerning Article 9 of the Convention

      123.  As the Court has decided to focus on Article 9 of the Convention in examining this part of the application, it finds it appropriate to reiterate the general principles concerning that provision.

      124.  As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion (see, among other authorities, Kokkinakis v. Greece, 25 May 1993, § 31, Series A no. 260-A; Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999-I; and Leyla Şahin, cited above, § 104).

      125.  While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. Article 9 lists the various forms which the manifestation of one’s religion or beliefs may take, namely worship, teaching, practice and observance (see, mutatis mutandis, Cha’are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000-VII, and Leyla Şahin, cited above, § 105).

      Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs (see, for example, Arrowsmith v. the United Kingdom, no. 7050/75, Commission’s report of 12 October 1978, DR 19; Kalaç v. Turkey, 1 July 1997, § 27, Reports of Judgments and Decisions 1997IV; and Leyla Şahin, cited above, §§ 105 and 121).

      126.  In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected (see Kokkinakis, cited above, § 33). This follows both from paragraph 2 of Article 9 and from the State’s positive obligations under Article 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined therein (see Leyla Şahin, cited above, § 106).

      127.  The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. As indicated previously, it also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed (see Manoussakis and Others v. Greece, 26 September 1996, § 47, Reports 1996-IV; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000XI; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 91, ECHR 2003-II), and that this duty requires the State to ensure mutual tolerance between opposing groups (see, among other authorities, Leyla Şahin, cited above, § 107). Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other (see Serif v. Greece, no. 38178/97, § 53, ECHR 1999IX; see also Leyla Şahin, cited above, § 107).

      128.  Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, and Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 112, ECHR 1999III). Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society (see, mutatis mutandis, the United Communist Party of Turkey and Others, cited above, § 45, and Refah Partisi (the Welfare Party) and Others, cited above § 99). Where these “rights and freedoms of others” are themselves among those guaranteed by the Convention or the Protocols thereto, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society” (see Chassagnou and Others, cited above, § 113; see also Leyla Şahin, cited above, § 108).

      129.  It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see, for example, Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005IX). This is the case, in particular, where questions concerning the relationship between State and religions are at stake (see, mutatis mutandis, Cha’are Shalom Ve Tsedek, cited above, § 84, and Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996-V; see also Leyla Şahin, cited above, § 109). As regards Article 9 of the Convention, the State should thus, in principle, be afforded a wide margin of appreciation in deciding whether and to what extent a limitation of the right to manifest one’s religion or beliefs is “necessary”. That being said, in delimiting the extent of the margin of appreciation in a given case, the Court must also have regard to what is at stake therein (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110). It may also, if appropriate, have regard to any consensus and common values emerging from the practices of the States parties to the Convention (see, for example, Bayatyan v. Armenia [GC], no. 23459/03, § 122, ECHR 2011).

      130.  In the Leyla Şahin judgment, the Court pointed out that this would notably be the case when it came to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. Referring to the Otto-Preminger-Institut v. Austria judgment (20 September 1994, § 50, Series A no. 295-A) and the Dahlab v. Switzerland decision (no. 42393/98, ECHR 2001-V), it added that it was thus not possible to discern throughout Europe a uniform conception of the significance of religion in society and that the meaning or impact of the public expression of a religious belief would differ according to time and context. It observed that the rules in this sphere would consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. It concluded from this that the choice of the extent and form of such rules must inevitably be left up to a point to the State concerned, as it would depend on the specific domestic context (see Leyla Şahin, cited above, § 109).

      131.  This margin of appreciation, however, goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate (see, among other authorities, Manoussakis and Others, cited above, § 44, and Leyla Şahin, cited above, § 110)….

      (γ)  Application of those principles to the present case

      137.  The Court would first emphasise that the argument put forward by the applicant and some of the third-party interveners, to the effect that the ban introduced by sections 1 to 3 of the Law of 11 October 2010 was based on the erroneous supposition that the women concerned wore the full-face veil under duress, is not pertinent. It can be seen clearly from the explanatory memorandum accompanying the Bill (see paragraph 25 above) that it was not the principal aim of the ban to protect women against a practice which was imposed on them or would be detrimental to them.

      138.  That being clarified, the Court must verify whether the impugned interference is “necessary in a democratic society” for public safety (within the meaning of Articles 8 and 9 of the Convention; see paragraph 115 above) or for the “protection of the rights and freedoms of others” (see paragraph 116 above).

      139.  As regards the question of necessity in relation to public safety, within the meaning of Articles 8 and 9 (see paragraph 115 above), the Court understands that a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. It has thus found no violation of Article 9 of the Convention in cases concerning the obligation to remove clothing with a religious connotation in the context of security checks and the obligation to appear bareheaded on identity photos for use on official documents (see paragraph 133 above). However, in view of its impact on the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety. The Government have not shown that the ban introduced by the Law of 11 October 2010 falls into such a context. As to the women concerned, they are thus obliged to give up completely an element of their identity that they consider important, together with their chosen manner of manifesting their religion or beliefs, whereas the objective alluded to by the Government could be attained by a mere obligation to show their face and to identify themselves where a risk for the safety of persons and property has been established, or where particular circumstances entail a suspicion of identity fraud. It cannot therefore be found that the blanket ban imposed by the Law of 11 October 2010 is necessary, in a democratic society, for public safety, within the meaning of Articles 8 and 9 of the Convention.

      140.  The Court will now examine the questions raised by the other aim that it has found legitimate: to ensure the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others” (see paragraphs 121-122 above).

      141.  The Court observes that this is an aim to which the authorities have given much weight. This can be seen, in particular, from the explanatory memorandum accompanying the Bill, which indicates that “[t]he voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of ‘living together’ in French society” and that “[t]he systematic concealment of the face in public places, contrary to the ideal of fraternity, ... falls short of the minimum requirement of civility that is necessary for social interaction” (see paragraph 25 above). It indeed falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity. Moreover, the Court is able to accept that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places (see paragraph 122 above).

      142.  Consequently, the Court finds that the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of “living together”.

      143.  It remains to be ascertained whether the ban is proportionate to that aim.

      144.  Some of the arguments put forward by the applicant and the intervening non-governmental organisations warrant particular attention.

      145.  First, it is true that only a small number of women are concerned. It can be seen, among other things, from the report “on the wearing of the full-face veil on national territory” prepared by a commission of the National Assembly and deposited on 26 January 2010, that about 1,900 women wore the Islamic full-face veil in France at the end of 2009, of whom about 270 were living in French overseas administrative areas (see paragraph 16 above). This is a small proportion in relation to the French population of about sixty-five million and to the number of Muslims living in France. It may thus seem excessive to respond to such a situation by imposing a blanket ban.

      146.  In addition, there is no doubt that the ban has a significant negative impact on the situation of women who, like the applicant, have chosen to wear the full-face veil for reasons related to their beliefs. As stated previously, they are thus confronted with a complex dilemma, and the ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their private life. It is also understandable that the women concerned may perceive the ban as a threat to their identity.

      147.  It should furthermore be observed that a large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate. This is the case, for example, of the French National Advisory Commission on Human Rights (see paragraphs 18-19 above), non-governmental organisations such as the third-party interveners, the Parliamentary Assembly of the Council of Europe (see paragraphs 35-36 above) and the Commissioner for Human Rights of the Council of Europe (see paragraph 37 above).

      148.  The Court is also aware that the Law of 11 October 2010, together with certain debates surrounding its drafting, may have upset part of the Muslim community, including some members who are not in favour of the full-face veil being worn.

      149.  In this connection, the Court is very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010 …

      150.  The other arguments put forward in support of the application must, however, be qualified.

      151.  Thus, while it is true that the scope of the ban is broad, because all places accessible to the public are concerned (except for places of worship), the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. The Court is aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face…

      152.  As to the fact that criminal sanctions are attached to the ban, this no doubt increases the impact of the measure on those concerned. It is certainly understandable that the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs. It should nevertheless be taken into account that the sanctions provided for by the Law’s drafters are among the lightest that could be envisaged, because they consist of a fine at the rate applying to second-class petty offences (currently 150 euros maximum), with the possibility for the court to impose, in addition to or instead of the fine, an obligation to follow a citizenship course.

      153.  Furthermore, admittedly, as the applicant pointed out, by prohibiting everyone from wearing clothing designed to conceal the face in public places, the respondent State has to a certain extent restricted the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public. However, for their part, the Government indicated that it was a question of responding to a practice that the State deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”. From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society (see paragraph 128 above). It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.

      154.  In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question. The Court has, moreover, already had occasion to observe that in matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight (see paragraph 129 above).

      155.  In other words, France had a wide margin of appreciation in the present case.

      156.  This is particularly true as there is little common ground amongst the member States of the Council of Europe (see, mutatis mutandis, X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997II) as to the question of the wearing of the full-face veil in public. The Court thus observes that, contrary to the submission of one of the third-party interveners (see paragraph 105 above), there is no European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member State of the Council of Europe has, to date, opted for such a measure. It must be observed, however, that the question of the wearing of the full-face veil in public is or has been a subject of debate in a number of European States. In some it has been decided not to opt for a blanket ban. In others, such a ban is still being considered (see paragraph 40 above). It should be added that, in all likelihood, the question of the wearing of the full-face veil in public is simply not an issue at all in a certain number of member States, where this practice is uncommon. It can thus be said that in Europe there is no consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places.

      157.  Consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent State in the present case, the Court finds that the ban imposed by the Law of 11 October 2010 can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

      158.  The impugned limitation can thus be regarded as “necessary in a democratic society”. This conclusion holds true with respect both to Article 8 of the Convention and to Article 9.

      159.  Accordingly, there has been no violation either of Article 8 or of Article 9 of the Convention….

       

      FOR THESE REASONS, THE COURT

      …2.  Declares, unanimously, the complaints concerning Articles 8, 9 and 10 of the Convention, taken separately and together with Article 14 of the Convention, admissible, and the remainder of the application inadmissible;

       …4.  Holds, by fifteen votes to two, that there has been no violation of Article 9 of the Convention…

  • 5 Convention on the Elimination of All Discrimination against Women (CEDAW)

    • 5.1 CEDAW, Arts. 1-5, 7, 11, 16

      Convention on the Elimination of All Forms of Discrimination against Women (1979/81)

      Article I

      For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

      Article 2

      States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

      (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

      (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

      (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

      (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

      (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;

      (g) To repeal all national penal provisions which constitute discrimination against women.

      Article 3

      States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women , for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

      Article 4

      1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

      2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.

      Article 5 States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;

      (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases. …

      Article 7

      States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

      (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government;

      (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country. …

      Article 11

      1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings;

      (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;

      (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;

      (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;

      (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;

      (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

      2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;

      (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

      (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;

      (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

      3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary. ..

      Article 16

      1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage;

      (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;

      (c) The same rights and responsibilities during marriage and at its dissolution;

      (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;

      (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;

      (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;

      (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;

      (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

      2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.

    • 5.2 CEDAW Ratification Map

    • 5.3 Louis Henkin, et al., Human Rights, 247-50, 815-22

      pp. 247-50, 815-22

    • 5.4 Letter of Daniel Bryant to Joseph Biden on U.S. CEDAW Ratification (2002)

      Letter from Daniel Bryant, Office of Legislative Affairs, Department of Justice, to Hon. Joseph R. Biden, Jr., Chairman, Committee on Foreign Relations, U.S. Senate (2002)

       

      Dear Chairman Biden:

      I write in response to your letters of June 17 and July 11, 2002 concerning the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), upon which the Foreign Relations Committee is considering voting in the near future. While the Department of State typically takes the lead in responding to correspondence from the Senate Committee of Foreign Relations, at your insistence I am responding directly on behalf of the Department of Justice.

      As indicated in Secretary Powell's July 8 letter to you, the Administration is currently reviewing CEDAW to determine what reservations, understandings, and declarations (RUDs) may be required in addition to those reported out by the Committee in Exec. Rept. 103-38 in October 1994. While this review is not yet complete, the Administration is certain that the 1994 RUDs are insufficient to address the various concerns raised by CEDAW. For example, the 1994

      RUDs do not address the controversial interpretations advanced by the official U.N. implementation committee after those RUDs were issued. Among other things, that committee questioned the celebration of Mother's Day in a January 2000 report to Belarus:

      The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mother's Day and a Mother's Award, which it sees as encouraging women's traditional roles.(Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Belarus, 31/01/2000, paragraph 361.)

      And in a March 1999 report to China, it called for legalized prostitution…

      These are but two examples of the instances in which this committee has exploited CEDAW'S vague text to advance positions contrary to American law and sensibilities.

      Nor does your recent draft resolution of ratification address these concerns. It does not, for example, address whether other interpretive bodies, whether foreign, international, or, indeed, domestic, could adopt similarly bizarre interpretations of CEDAW's vague text, or what deference, if any, these bodies would accord the official U.N. implementation committee. (As we have recently witnessed in the Pledge of Allegiance case, there are, regrettably, judges who will engage in aggressively counterintuitive interpretations of legal texts.) The implementation committee, moreover, has now begun ``[t]he process of interpreting the substantive articles of the Convention'' and to ``formally . . . interpret the rights guaranteed in the Convention.''

      Your draft resolution, however, does not address the effect of these formal interpretations on domestic and international law. These concerns remain, regardless of whether, in the words of your draft resolution, the implementation committee has the ``authority to compel actions by State parties.'' It is crucial, therefore, that we fully understand the implications of these rulings on parties that join CEDAW after they have been issued, as well as the consequences of any rulings that might issue after a state becomes party to the treaty. In addition, we must fully understand the numerous other issues raised by CEDAW, such as its implications on current U.S. constitutional and statutory law and areas of law traditionally regulated by the States. The complexity of this treaty raises many other important issues that are not addressed in your draft resolution, which we are examining as well.

      This is not the first Administration, nor the first Senate, to recognize the magnitude of the issues raised by CEDAW. As you know, this treaty has been before the United States Senate for twenty-two years. During this time period, it has been before a Democratic Senate with a Democratic President (President Carter), a Republican Senate with a Republican President (President Reagan), a Democratic Senate with a Republican President (President Reagan), a Democratic Senate with another Republican President (President George H.W. Bush), a Democratic Senate with a Democratic President (President Clinton), and a Republican Senate with a Democratic President (President Clinton). In other words, regardless of which party controlled either the Senate or the Presidency, the Senate has declined to act on this treaty for twenty-two years. In this context, it would be imprudent to act with undue haste before we have had an opportunity to conduct a full and fair review of this treaty, particularly in light of the recent actions taken by the U.N. implementation committee (and the future actions that it has announced its intention to take)….

      Thank you for your attention to this matter.

      Sincerely,

       

      Daniel J. Bryant,

      Assistant Attorney General

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