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

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).

The ECtHR finds that this ‘respect for the minimum requirements of life in society’ or of ‘living together’ can be linked to the legitimate aim of the ‘protection of the rights and freedoms of others’ (para. 121). The ECtHR then considers:

The Court … can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier. That being said, in view of the flexibility of the notion of “living together” and the resulting risk of abuse, the Court must engage in a careful examination of the necessity of the impugned limitation (para. 122).

This might give some indication of what the concept of ‘living together’ means, although still a rather vague one. The last sentence of the above quote already indicates that the ECtHR itself finds the notion flexible. The dissenting judges call it a ‘very general concept’ and criticise is as ‘far-fetched and vague’ (para. 5).

The above suggests that the wearing of the burqa or the niqab is seen as sign of unwillingness on the part of the women who wear them to take part in French society and to integrate. These women are thus seen as distancing themselves from other people and as rejecting the norms and culture of the French society and should not be allowed to do so and therefore, the full-face veil needs to be banned by law. This argument can be taken a step further and is then seen as a general metaphor for Muslim non-integration. For example, in 2006, the British MP Jack Straw wrote an article in which he requested his constituents to remove the face covering veil when coming to discuss things with him. One of the reasons was that the ‘wearing the full veil was bound to make better, positive relations between the two communities [the majority community and the Muslim minority community] more difficult. It was such a visible statement of separation and of difference’.

The ‘living together’ argument can thus be seen as a requirement for Muslim women who wear the full-face veil (and for all Muslims) in French society to assimilate to the ‘life of society’ and to respect the minimum requirements for this. But bans which, although couched in neutral terms of prohibiting the wearing of all face-covering clothing in public, clearly target Muslims, may lead to a strengthening of the Muslim identity, exacerbate the polarisation between Muslims and others in society and increase societal divisions. This might also lead Muslims (especially young people) to become more radical and more fundamentalist and it might incite extremist actions. The ban itself might thus increase segregation and radicalisation and so increase the risk to public safety and security rather than being a tool necessary for ‘living together’.

The ECtHR expresses its strong concern over the indications from the third party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the law (para. 149). The ECtHR emphasises ‘that a State which enters into a legislative process of this kind takes the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, when it has a duty, on the contrary, to promote tolerance’ (para. 149). The ECtHR also expresses its awareness of the fact 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’ (para. 148).

Does all this not suggest that, rather than bringing the minority Muslim community within (French) society, bans can have the opposite effect: the polarisation between the majority and the Muslim community gets aggravated and the majority community gets less tolerant? The violent protests in France in July 2013 illustrate this polarisation. So, banning full-face veils might equally be seen as going against the ‘living together’ objective of the law.

There is also the danger that allowing bans because individuals ‘present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships’ (para. 122, quoted above) leads to bans on anything that may make the majority population uncomfortable (for example: hoodies or sunglasses). Besides, as the dissenting judges state, there is no right not to be shocked or provoked by different models of cultural and religious identity (para. 7) and there is no right to enter into contact with other people, in public places, against their will (para. 8). The judgment might further lead to bans in other states who feel emboldened by the judgment. There is already evidence of this in Denmark, Norway and Austria.

 So, despite a number of positive aspects, the recognition by the ECtHR that ‘living together’ can be a permissible ground for the limitation of the rights guaranteed by Article 8 and 9 of the Convention and the conclusion that in this case the ban is not disproportionate, erodes, as Berry rightly concludes, the right to manifest one’s religion. This decision is even more disappointing in light of the fact that the ECtHR ‘pursues a balanced approach, carefully ponders many important arguments of those opposed to the prohibition on concealing one’s face in public places and assesses the problems connected with it’, as the dissenting judges write (para.1). And, as the ECtHR itself states, ‘a large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate’ (para. 147). The latter include the Parliamentary Assembly of the Council of Europe (paras 35-36) and the Commissioner for Human Rights of the Council of Europe (para. 37).

 So, although the balance of arguments used by the ECtHR itself would suggest finding a violation of Article 9, has the ECtHR instead not abrogated their responsibility by using a vague concept like ‘living together’ which may have to opposite effect and lead to social division?