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Home Posts tagged "margin of appreciation"

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…

 

Climate Change before the Courts: Urgenda Ruling Redraws the Boundary between Law and Politics

Published on November 16, 2018        Author: 

On the 9th of October, the Hague Court of Appeal upheld the first-instance judgment in the Urgenda case, ordering the Dutch State to reduce greenhouse gas emissions more progressively than planned by the government. The appeal judgment was applauded across the world and welcomed as a source of inspiration for climate change litigation in other jurisdictions. At the same time, the ruling has evoked criticism in the Netherlands, where commentators wondered if the court had not overstepped the boundary between law and politics, violating the separation of powers (eg in Dutch here, here, and here). The ruling raises intricate questions concerning the proper role of domestic courts in securing compliance with the European Convention on Human Rights (ECHR) in matters of general policy. Arguably, the judgment expands the role of courts beyond what Dutch constitutional law allows them to do, but this expansion fits with the increasing emphasis put on the notion of subsidiarity by the Member States of the Council of Europe.

Greenhouse Gas Emissions and Human Rights

The Court of Appeal confirmed that by 2020, the Dutch government should have reduced the cumulative volume of greenhouse gas emissions by at least 25 % compared to the situation in 1990. The government had agreed to a 49 % reduction target for 2030 and a 80-95 % target for 2050 (para 46), but disputed that it was legally obliged to commit to a reduction target of at least 25 % for 2020, in light of the EU’s commitment of 20 %. The appeal court agreed with Urgenda that a reduction of 20 % by 2020 would not be sufficient to meet the 2030 target and that reduction efforts should not be delayed (para 47).

According to the court, the State’s refusal to commit to at least 25 % breached its duty of care under Articles 2 and 8 of the ECHR. In interpreting these Articles, the court ruled that ‘the State has a positive obligation to protect the lives of citizens within its jurisdiction under Article 2 ECHR, while Article 8 ECHR creates the obligation to protect the right to home and private life’ (para 43). The court noted ‘a real threat of dangerous climate change, resulting in the serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption of family life’ (para 45). In this context, the State’s duty of care required a reduction of at least 25 % (para 73). Read the rest of this entry…