Human Rights and Religion: The Islamic Headscarf Debate in Europe Book

Acknowledgments vii

Table of Cases xv

Introduction 1

1 Human Rights and Religion: the Challenge of the Islamic Headscarf-Hijab 4

Introduction 4

The Headscarf-Hijab: Language, Meaning and Significance 4

The Headscarf-Hijab as a Religious Obligation? 8

The Real Debates Behind the Debates on the Headscarf-Hijab 12

The Headscarf-Hijab as an Instrument of Oppression of Woman 13

The Headscarf-Hijab as a Political Symbol 17

The Headscarf-Hijab as Evidence of the Failed Integration of Immigrants 17

The Headscarf-Hijab and Terrorism 20

Human Rights Perspectives on the Headscarf-Hijab 22

Religion and Human Rights 24

The Human Right to Freedom of Religion 25

Article 18 of the International Covenant on Civil and Political Rights 26

Article 9 of the European Convention on Human Rights 27

The National Assessment and the margin of Appreciation 28

Parents and Children 30

European Union Standards 30

The Role of Human Rights Thinking 31

2 The Islamic Headscarf Debate in France 34

Introduction 34

The Church and State in France 36

The Law of 1905 36

Laicite and Secularism 38

The French Approach to Rights 41

Assimilation and Integration 44

France and International Human Rights law 46

How France view Muslims 47

Muslims in France 52

The Wearing of the Headscarf-Hijab in France 61

The Headscarf-Hijab Debate in France: l' Affaire du Foulard 64

The 1989 Opinion of the Conseil d' Etat 68

Cases in the Conseil d'Etat 70

The Neutrality of Civil Servants and Teachers 73

The School Context 76

The Headscarf-Hijab in the Private Sector 80

President Chirac's Speech of 16 December 2003 81

The Stasi commission 83

The French Law onHeadscarves-Hijab of 2004 90

The Application of the New Law 91

Reactions to the Ban on the Headscarf-Hijab 96

The Law of 2004-Two Years On 100

Concluding Comments 101

3 Comparative State Practice; Germany 107

Introduction 107

The Church and State in Germany 107

The Muslim Community in Germany 109

The Headscarf-Hijab Debate in Germany 110

The Ludin Case 111

The Minority Judgment in Ludin 114

Responses to the Ludin Case 115

Concluding Comments 118

4 Comparative state Practice: Switzerland 120

Church and state in Switzerland 120

Muslims in Switzerland 120

The Dahlab Case 121

The Dehlab Case in the Swiss Federal Court 122

The European Court of Human Rights in Dahlab 129

Concluding Comments 131

5 Comparative state Practice: Turkey 132

Introduction 132

State and Religion in Turkey 132

The Headscarf-Hijab Debate in Turkey 133

Turkish Cases Before the European Commission on Human Rights 137

Leyla Sahin v Turkey the Judgment of the European Court of Human Rights 140

The Assessment of the Grand Chamber on Article 9 European Convention on Human Rights Freedom of Religion 150

The Assessment of the Grand Chamber of Article 2 of Protocol 1: the Right to Education 157

The Assessment of the Grand Chamber on Articles 8 (privacy), 10 (expression) and 14 (non-discrimination) 159

The Dissent of judge Tulkens' in the Grand Chamber 159

The Significance of the Decision in Leyla Sahin v Turkey 167

The Advocacy of Islamic Headscarves-Hijab in Turkish Politics 169

Concluding Comments 171

6 Comparative State Practice United Kingdom 173

Introduction 173

State and Church in the United Kingdom 173

Muslims in the United Kingdom 174

Muslims and School Uniforms in England and Wales 176

The Begum Case in the High Court 180

The Begum Case in the Court of Appeal 184

The Begum Case in the House of Lords 190

Conduding Comments 203

7 Comparative State Proactive Spain, Italy, Belgium the Netherlands, and Other European States 205

Spain 205

Italy 206

Belgium 210

The Netherlands 212

Other European States 214

Concluding Comments 218

8 Comparative State Practice; Non-European States 220

Introduction 220

The United States 220

Uzbekistan 225

Trinidad 230

Afghanistan 232

Singapore 233

Saudi Arabia 233

Iran 234

Concluding Comments 236

9 Applying International Human Rights Standards to the Headscarf-Hijab 237

Introduction 237

Individual Applications to National Courts and International Human Rights Bodies 237

Individual and Group Identities and Rights 241

Negative and Positive Aspects of a Human Rights 244

The Right to Freedom of Religion 246

The Human Rights Context of Church-State Relations Under the ECHR 247

Limitations on religious freedoms on the basis of the 'protection of public order' and the 'protection of the rights and freedoms of others' 250

Religious Discrimination and Islamophobia 252

Religious Discrimination and the European Union 257

Racial Discrimination 259

Gender Discrimination and Feminist Perspectives 261

Autonomy and Consent 270

Minority Rights and Cultural Rights 275

Children's Rights and Parents Rights 276

Teachers Rights and Children's Rights 282

Concluding Comments 286

10 Wider Perspectives on the Headscarf-Hijab 288

Introduction 288

National Identity 288

National Identity and International Human Rights law 289

Changing National Identity 294

Multiculturalism and Islamophobia 298

Secularism Versus Religion 301

Secularism and International Human Rights Law 303

Secularism and Neutrality 304

Liberalism and Religious Education 305

Liberalism and Religious Fundamentalism 306

Concluding Comments 308

Author Index 311

Index 317