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S.A.S. v France: Living Together or Increased Social Division?

Published on July 7, 2014        Author: 

On 1 July, the European Court of Human Rights (ECtHR) has delivered, in a public hearing, its judgment in the case of S.A.S. v France. This case is a challenge of the French legislation prohibiting the wearing of face-covering clothing in all public spaces. In a post on this blog, Stephanie Berry discusses the case and points out a number of positive developments, including the balanced and well-reasoned nature of the judgment, the rejection of the gender equality and human dignity arguments for the burqaban, as she refers to the French law, and the consideration that this ban was not necessary for public safety in the absence of concrete evidence. However, Berry criticises the ECtHR for accepting that the ban pursues the legitimate aim of ‘living together’ under the ‘protection of the rights and freedoms of others’. Berry points out that this concept pursues a distinctly assimilationist agenda. I agree with Berry that this is a worrying development. In this post, I examine this concept of ‘living together’ in more detail and explain why this is such a worrying development. I will not discuss other aspects of the judgment.

First of all, what does this concept mean? The ECtHR mentions that the ‘Report on the wearing of the full-face veil on national territory’ criticises the wearing of the full-face veil as ‘a practice at odds with the values of the Republic’ and as ‘a denial of fraternity, constituting a negation of contact with others and a flagrant infringement of the French principle of living together’ (para. 17). It also refers to the explanatory memorandum to the relevant law, which states that ‘the wearing of the full veil is the sectarian manifestation of a rejection of the values of the Republic’; that ‘the 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 it ‘falls short of the minimum requirement of civility necessary for social interaction’ (para. 25). The French Government stated that one of the aims of the law was the observance of the minimum requirements of life in society because the face plays a significant role in human interaction, and 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’ (para 82, and for a similar argument from the Belgian government: para. 87).

Read the rest of this entry…

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The Peace of Utrecht in 1713, a Painting by Semiramis Öner Mühüdaroğlu

Published on July 7, 2014        Author: 

Treaty of UtrechtThe Treaty of Utrecht was until recently one of the few major peace treaties that had not been commemorated in a painting or photograph. The  treaty was finally memorialized on the occasion of its 300-year anniversary last year in a painting (pictured left, click to enlarge) by Turkish artist Semiramis Öner Mühüdaroğlu.

The Treaty of Utrecht was in fact a group of bilateral treaties that helped to end the War of Spanish Succession, which was being fought among European States including Spain, Great Britain, France, Portugal, Savoy, and the Dutch Republic. During negotiations lasting nearly fourteen months, from 29 January 1712 to 11 April 1713, the States reached compromises that included cessions of territories in both Europe and the Americas as well as recognitions and renunciations of various sovereign titles. 

Although the treaties were not concluded in a single signing moment, the artist depicts the diplomats who negotiated the various agreements together in the ballroom of the Utrecht Town Hall, posed as if they have just signed an agreement. Among the diplomats are five allegorical figures. These include a child holding a globe, symbolizing the various geographies touched by the treaty; a female figure holding an olive branch and dove, representing peace; and another woman holding an open book to symbolize  justice.

The painting was commissioned by the foundation that owns the Oudaen City castle, where the French emissary Melchior de Polignac and his retinue stayed during the protracted peace negotiations. The painting is housed at the Townhall of Utrecht.

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SAS v France: Does Anything Remain of the Right to Manifest Religion?

Published on July 2, 2014        Author: 

Niqab23The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged 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’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. InDahlab v Switzerlandthe ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Read the rest of this entry…

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Eroding Religious Freedom Step by Step: France and the Baby Loup Case

Published on July 1, 2014        Author: 

cour de cassationLast Wednesday, the French Cour de Cassation (pictured left), in the Baby Loup case, permitted yet another restriction to be placed on the right to manifest religion in France.  The applicant had been fired from her job at Baby Loup, a private crèche and nursery, for violating the organisation’s rules of procedure. By wearing the hijab, the applicant purportedly breached the rule that

the principle of freedom of conscience and of religion of each staff member may not impede respect for the principles of laïcité [secularism] and neutrality that apply in the exercise of developmental activities, either on the premises of the crèche or during outside activities in which staff accompany children enrolled in the crèche.

The applicant will now take the case to the European Court of Human Rights (ECtHR). The decision of the Cour de Cassation in Baby Loup is made all the more significant by the pending judgment in SAS v France, due to be handed down by the ECtHR today. Will the ECtHR continue to permit the creeping erosion of the right to manifest religion (article 9 European Convention of Human Rights (ECHR)) by deferring to the State’s margin of appreciation?

The decision of the Cour de Cassation was based on Articles L. 1121-1 and L. 1321-3 of France’s Labour Code, which require any restrictions on an employee’s freedom of religion to be proportionate and justified by the nature of the employment. The Courtfound that the private nursery could not justify the restriction of the freedom of religion of the employee by direct reference to the principle of laïcité, as the principle applies only to public bodies. Nonetheless, it was willing to accept that the adoption of the principle of laïcité in the organisation’s rules of procedure was designed to protect children and to promote gender equality, rather than promoting and defending laïcité as a religious, political or philosophical belief. Consequently, the Cour de Cassation found that the restriction on the applicant’s freedom of religion was permissible.

The ECtHR is also likely to consider whether the freedom of religion of the applicant in Baby Loup can be justified by either the principle of secularism or ‘the rights and freedoms of others’ (article 9(2) ECHR). The recent cases of Ahmet Arslan and others v Turkey and Eweida and others v United Kingdom are directly relevantas previous ECtHR cases addressing the restriction of the right to manifest religion in the private sphere.

Ahmet Arslan concerned the arrest of members of the Aczimendi tankaı religious community for wearing religious clothing in public. The ECtHR found that the restrictions placed on the community by the authorities could not be justified by reference to the principle of secularism as the applicants were not State officials (para 48) and were not wearing religious clothing in a State institution such as a State school (para 49). Thus, Ahmet Arslan limits the circumstances in which States may justify the restriction of freedom of religion on the grounds of the principle of secularism to public officials and institutions. Consequently, it seems unlikely that France will be able to rely on the principle of laïcité in the Baby Loup case, as the nursery was a private organisation. Read the rest of this entry…

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Launch of the Manchester International Law Centre

Published on June 30, 2014        Author: 

Jean d’Aspremont and Iain Scobbie are pleased to announce the establishment of the Manchester International Law Centre (MILC).

Roughly twenty researchers are currently associated with MILC and we hope to grow at a steady pace over the next few years.  We have a number of current and planned projects.  One of the most significant is the re-launch of the prestigious Melland Schill public lectures in international law after a 40 year interregnum.  In her will Miss Olive B. Schill left a bequest to the University of Manchester in memory of her brother, Edward Melland Schill, who was killed during the 1914—1918 war.  The income generated by this bequest was initially used to host and publish a series of public lectures dealing with international law.  From 1961—1974, Professor Ben Wortley organised a series of distinguished lecturers, including Professors Quincy Wright, Robbie Jennings, and Dan O’Connell, and Sir Ian Sinclair.  On Professor Wortley’s retirement, his successor, Professor Gillian White, decided to replace the lectures with a monograph series, published by Manchester University Press.  This included equally distinguished authors, such as General AVP Rogers, and Professors Anthony Carty, Hilary Charlesworth, Christine Chinkin, Vaughan Lowe, Robin Churchill, and Leslie Green.  We hope to breathe new life into this monograph series, and to republish some of the classic lectures which still retain interest and relevance

The initial lecture in the revived Melland Schill lecture series will be delivered in Manchester on October 15th by Professor John Dugard when he will discuss contemporary developments in Statehood.

In the autumn we will also introduce four new masters programmes in international law, and we are currently working on the creation of a database of international law documents.  In collaboration with Lancaster Law School, we are also in the process of organising a series of public lectures on the impact of the First World War on international law for the coming academic year.  In 2018, we shall host the annual meeting of the European Society of International Law.

Our areas of research include all major topics of international law.  Although we already have some partners, we welcome new opportunities for partnership and co-operation.  Please visit our webpage or follow us on twitter (@MILC2014) for more information.

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Announcements: Conference on Asylum in Europe, Website Covering Italian Practice on International Law

Published on June 28, 2014        Author: 

1.  ‘Using Human Security as a legal framework to analyse the Common European Asylum System,’ 4 July, T.M.C Asser Instituut, The Hague, Netherlands. This expert conference will explore new territory in its analysis of protection under the Common European Asylum System through the prism of Human Security. The four thematic panels of the conference will analyse the added value of using Human Security as a legal framework for protection in Asylum law whilst assessing the prospects of legal interaction between both fields. It will take stock of recent developments in legislation, jurisprudence and doctrine; proposing insightful approaches to contemporary asylum challenges. The event is free of charge, however registration is required. Please register here. More information is available here.

2.  A team of scholars and students mainly based at the University of Trento, Italy announces the launch of www.italyspractice.info is a collection of Italian parliamentary and diplomatic statements on issues of international law. The website’s main purpose is to provide access to the Italian Government’s practice to non-Italian speakers.  The team constantly monitors the statements of the Italian Government as expressed before the Italian Parliament, as well as within the United Nations system, both in New York and Geneva.  Whenever necessary, it translates the statements into English. Then it classifies them chronologically, as well as through keywords and tags: the entire database is searchable. Each post is identified by a topic-based title and introduced by a short summary. When possible, a link to the official document is made available. This website will be a useful tool for scholars and practitioners of international law and international relations, as it provides for wide-ranged and easily accessible materials. 

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The Marshall Islands’ Case against India’s Nuclear Weapons Program at the ICJ

Published on June 27, 2014        Author: 

ShashankShashank P. Kumar is a Dispute Settlement Lawyer at the Appellate Body Secretariat of the WTO in Geneva and a visiting lecturer of international law at National Law University, Jodhpur, India.

Earlier this year, on 24 April, the Republic of the Marshall Islands filed an application against India and eight other States at the International Court of Justice (ICJ), claiming that these States, known or presumed to possess nuclear weapons, have failed to fulfil their obligations under international law with respect to nuclear disarmament and the cessation of the nuclear arms race at an early date. In its application against India, the Marshall Islands accused it of not engaging in negotiations to cease the nuclear arms race, highlighting that India, instead, continues to expand and improve its nuclear arsenal. By an Order dated 16 June 2014 the Court noted India’s objection to its jurisdiction, as well as its refusal to participate in procedural meetings, and decided that the jurisdictional questions must be separately determined before proceeding to the merits. This post explores the basis of the Court’s jurisdiction over the Marshall Islands’ application against India. One reservation to India’s optional clause declaration excluding disputes concerning actions taken in “self-defence” suggests that the Court lacks jurisdiction over the case.

The Marshall Islands relies on different grounds to establish the Court’s jurisdiction in its nine applications. In its applications against India, the United Kingdom, and Pakistan, it invokes these States’ declarations accepting the Court’s compulsory jurisdiction. In its applications against the United States, China, France, Russia, Israel and North Korea – none of whom have made declarations accepting the Court’s compulsory jurisdiction – it calls upon these States to accept the Court’s jurisdiction under the doctrine of forum prorogatum. The application against India is unique because, while India has accepted the Court’s compulsory jurisdiction, unlike the UK and Pakistan, India made a reservation to its Declaration that may exclude the Court’s jurisdiction over the Marshall Islands’ Application.

The Limits of India’s Recognition of ICJ Jurisdiction

On 18 September 1974, Swaran Singh, the then Indian Minister of External Affairs, made a declaration, on India’s behalf, which recognizes “as compulsory ipso facto and without special agreement … the jurisdiction of the [ICJ] over all disputes”. This blanket acceptance is qualified by a long list of reservations that excludes several categories of disputes from the scope of India’s consent. One broad class of disputes that is excluded are “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, … and other similar or related acts, measures or situations in which India is, has been or may in future be involved”. Read the rest of this entry…

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To Juncker or Not to Juncker – Is That the Question?

Published on June 26, 2014        Author: 

(Excerpt from the forthcoming Editorial of EJIL 25:2)

Far beyond the question of whether or not Council should feel obligated, or should even if not obligated, to select as President of the Commission the Lead Candidate of the largest party in the European Parliament, is a far more profound issue: should the President of the Commission be ‘Political but not Partisan’ (the Barroso thesis) or should voter preference in choosing not only this or that President but this or that party (with an ideological line) be translated into the policies espoused by the President of the Commission and indeed the Commission itself.

Strange as it may seem, it appears that this issue was not addressed with real seriousness even within Parliament itself and has not been a central part of the debate about the selection of the next President even on the eve of the Summit. David Cameron has (for the most part) based his objection on the specific political convictions (as he sees them) of Juncker as regards the future of the Union and not to the potential sea change which the Lead Candidate exercise potentially ushers.

But first, is Council really obligated to follow the election results in this manner?

I think the argument based on Article 17 TEU that the European Council is obligated to follow the Parliamentary choice is overstated both as a matter of law and as a matter of politics.

Read the rest of this entry…

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The Legality of Turkey’s Possible Self-Defence Action against ISIS: A Response to Ashley Deeks

Published on June 25, 2014        Author: 

SinaSina Etezazian is a PhD Candidate at Monash Law School.

In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria).  She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter.  She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:

(1) the nationals in question face imminent threat of (or have suffered actual) injury;

(2) the host state is unwilling or unable to protect or rescue them; and

(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.

However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere  (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.

The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks

The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.

It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Read the rest of this entry…

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