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Home 2019 January (Page 4)

The UN Human Rights Committee Disagrees with the European Court of Human Rights Again: The Right to Manifest Religion by Wearing a Burqa

Published on January 3, 2019        Author: 

It is perhaps unsurprising to observers of the UN Human Rights Committee’s (HRC) jurisprudence that in the recent decisions of Yaker v France and Hebbadi v France, the HRC came to the opposite conclusion to the European Court of Human Rights (ECtHR) regarding the compatibility of the so-called ‘French burqa ban’ with the right to manifest religion. In SAS v France, the ECtHR had found that although the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqa ban’) interfered with the right to manifest religion, it did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it pursued the legitimate aim of ‘living together’ and fell within the State’s margin of appreciation (see my earlier post on this case). In contrast, in Yaker and Hebaddi, the HRC found that the same law violated not only article 18, the right to thought, conscience and religion, but also article 26 of the International Covenant on Civil and Political Rights (ICCPR), the right to equality before the law.

The HRC’s freedom of religion or belief jurisprudence has consistently diverged from that of the ECtHR when the right to manifest religion by wearing religious clothing is at issue. Both bodies have heard directly analogous cases, but while the HRC has found that restrictions on religious clothing justified by reference to either secularism or public order violate article 18 ICCPR, the ECtHR has deferred to the State’s margin of appreciation and declined to find a violation (see my earlier post on this blog). As a result, the HRC’s decisions in Yaker and Hebbadi were not entirely unexpected, especially as in its Concluding Observations on the fifth periodic report of France in 2015, the HRC had expressed ‘the view that these laws [including the burqa ban] infringe the freedom to express one’s religion or belief and that they have a disproportionate impact on members of specific religions and on girls’ (para 22). However, its decision in these cases remains noteworthy as a result of: its consideration of ‘living together’ as a legitimate aim under the article 18(3) ICCPR limitations clause; the HRC’s recognition that the burqa ban constituted intersectional discrimination; and the nuanced approach adopted to the gender equality argument. The analysis here will focus on Yaker, although the HRC’s reasoning in both cases is identical. Read the rest of this entry…

 

Trivia: Judges on Multiple International Tribunals

Published on January 2, 2019        Author: 

In previous posts (here and here) of some years ago, I noted the increasing number of judges elected to the International Court of Justice who had prior experience on another international tribunal. With the proliferation of international tribunals over the past couple of decades, this phenomenon of judges being elected to one international tribunal after having served in some judicial capacity on another appears to be on the increase. About 10 days ago, the United Nations General Assembly held elections for two judicial vacancies on the International Residual Mechanism for International Criminal Tribunals. The Assembly elected Yusuf Aksar of Turkey as a judge, but after  six rounds of balloting was unable to elect the second judge, with a further round of balloting to be held at date to be announced. Professor Aksar currently serves as an ad hoc judge of the European Court of Human Rights. This is the latest example of an international judge with prior international judicial experience. 

All of this leads me to wonder which international judge (by which I mean, judge of a standing international tribunal) has served on the most number of (standing) international tribunals. I can think of one judge who has sat on three international tribunals and two judges who have served on/been elected to  four.

My opening trivia questions for the new year are these:

  1. Which judge has served on the International Court of Justice; the International Criminal Tribunal for the former Yugoslavia and the International Criminal Court?

  2. Which judge has been elected to the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the International Criminal Court?

  3. Which judge has served on the  International Court of Justice; the International Criminal Tribunal for the former Yugoslavia; the International Criminal Tribunal for Rwanda; and the Appellate Body of the World Trade Organisation?

  4. Can anyone think of an international judge who has served on 5 or more standing international tribunals?

Read the rest of this entry…