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

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.

At the outset, it must be noted that the HRC has been criticised for failing to fully elaborate the reasons for departing from the ECtHR’s decisions in analogous cases concerning the right to manifest religion (McGoldrick). In Yaker, however, the HRC’s consideration of the merits is far more developed than in its earlier freedom of religion or belief decisions, which in turn allows for a detailed comparison to the ECtHR’s decision in SAS.

In SAS, the ECtHR accepted that the interference with the applicant’s rights was legitimate as it pursued ‘living together’ which was accepted to fall with the article 9(2) ECHR ground of ‘the rights and freedoms of others’.  Despite recognising ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, the ECtHR ultimately deferred to the State’s margin of appreciation and found no violation of the applicant’s rights. The ECtHR’s decision in SAS has been subject to considerable criticism. Notably, Erica Howard, in a post on this blog, argued that not only can the burqa ban ‘be seen as going against the “living together” objective of the law’ but also that the ECtHR ‘abrogated their responsibility by using a vague concept like “living together”‘.  

In direct contrast, the HRC’s treatment of ‘living together’ aligns more closely with that of the Partially Dissenting Judges in the ECtHR. The Partially Dissenting Judges had noted that ‘living together’ was a ‘very general concept’ and ‘far-fetched and vague’ (para 5). Similarly, the HRC observed that the concept of “living together is very vague and abstract” (para 8.10). This assessment underpinned the HRC’s decision that ‘living together’ did not pursue one of the legitimate grounds for limitation listed in article 18(3) ICCPR.

An initial reading may lead to the divergence between the decisions of the HRC and ECtHR being attributed to the ECtHR’s deference to the French margin of appreciation. However, in SAS, the ECtHR did not make reference to the margin of appreciation until its consideration of whether the law was ‘necessary in a democratic society’. Indeed, deference usually results in States being awarded the benefit of the doubt in instances where the outcome of a proportionality test might not be favourable. In contrast, the divergence in these cases arises from the consideration of whether the restriction of the right to manifest religion pursues a legitimate aim outlined in the limitations clause. Whereas, the ECtHR was satisfied by France merely linking ‘living together’ to the ground of ‘the rights and freedoms of others’ (para 121), the HRC required that France identify the specific ‘fundamental rights or freedoms of others that are affected by the fact that some people present in the public space have their face covered’ (para. 8.10). In the absence of the identification of such a right, the HRC was not willing to accept that ‘living together’ constituted a legitimate ground for restricting the right to manifest religion. The HRC’s decision is not only more faithful to the requirement that ‘paragraph 3 of article 18 is to be strictly interpreted: restrictions are not allowed on grounds not specified there […]’ (para 8.4) but also more consistent with both bodies’ earlier jurisprudence on this matter. For example, in cases where restrictions on religious clothing have been legitimised by reference to secularism, both the ECtHR and HRC accepted that such restrictions pursued ‘the rights and freedoms of others’, on the basis that they sought to protect the religious freedom of others. It is of note, however, that in its consideration of ‘living together’, the HRC also appeared sceptical of the justification as France had not explained why the presence of veiled women in public might undermine ‘the rights and freedoms of others’, when other forms of face coverings exempt from the law would not (para 8.10).

Despite dismissing the ‘living together’ justification, the HRC went on to clarify that even had it accepted this, it would not have changed the outcome of the case. Specifically,  it did not accept that the criminal ban was proportionate or the least restrictive alternative available to the State to pursue the aims of the law. This directly contrasts with the approach of the ECtHR in SAS,  which despite expressing concern about the potentially counterproductive nature of the law (para 149), accepted that the sanctions attached to the criminal ban were relatively light (para 152) and ultimately deferred to the State’s margin of appreciation (para 154). Despite recognising that ‘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), the ECtHR did not consider whether the interference was the least restrictive alternative available to France.

Consequently, the HRC scrutinised whether the law’s purported aims pursued a ground listed in the limitations clause and, in the absence of a margin of appreciation,  whether it was proportionate to the aim pursued. In contrast, the deference permitted to France by the ECtHR in SAS led to a light-touch approach that did not require the identification of ‘the rights or freedoms of others’ that were purported to be protected by the burqa ban nor whether the law was proportionate to the aim pursued. The divergence between the jurisprudence of the two bodies can, in the words of Howard, be attributed to the ECtHR ‘abrogating its responsibility’.

The HRC’s consideration of the discriminatory nature of the French law is also significantly more developed than that that of the ECtHR. In SAS, the ECtHR did not consider in any great detail whether the law constituted a violation of article 14 in conjunction with articles 8 or 9, as it accepted that it pursued ‘an objective and reasonable justification’ (para 161). The Court earlier in the judgment had accepted that although the law disproportionately impacted Muslim women, its neutral framing was ‘of some significance’ (para 151). In direct contrast, the HRC at the outset of its consideration of the merits, signaled that it considered the law to be discriminatory by noting that despite its neutral framing, it disproportionately impacted Muslim women and allowed a broad range of exemptions (para 8.2). In exploring the applicant’s claim that the law amounted to indirect discrimination under article 26 ICCPR, the HRC returned to this and reiterated that ‘Act No. 2010-1192 despite being drafted in general terms, includes exceptions for most contexts of face-covering in public, this limiting the applicability of the ban to little more than the full-face Islamic veil, and that the Act has been primarily enforced against women wearing the full-face veil’ (para 8.13). Further, the HRC noted that religious minority practices were frequently ‘the subject of hostility on the part of a predominant religious community’ (para 8.14) alongside the potential for the law to increase the disadvantage faced by the very women it purported to protect by ‘confining them to their homes, impeding their access to public services and exposing them to abuse and marginalization’ (para 8.15). In so doing, the HRC found that the ban constituted ‘intersectional discrimination based on gender and religion’ (para 8.17).

The recognition that the burqa ban constituted intersectional discrimination is an important development in this field where violations are primarily viewed through the prism of religious freedom. As noted by the HRC, these measures are frequently underpinned by the presumption that Muslim women are forced to conform to ‘family or social pressures’ (para 8.15) but in practice serve to reinforce stereotypes, remove the agency of these women and compound any disadvantage faced. It is also notable, that the HRC does not explore whether law constituted direct or indirect discrimination. Indeed, the HRC’s discussion suggests that it might consider it to be the former rather than the latter. As recognised by the HRC, both the debate preceding the adoption of the law and the arguments offered by the French government to justify the law, specifically, gender equality and living together, indicate that despite the law’s neutral framing it was adopted with the aim of prohibiting the burqa and niqab. Further, in this instance, while the prohibition itself is neutrally framed, the rest of the law cannot claim to be neutral as it provides a wide range of exemptions including clothing worn for ‘”part of sporting, artistic or traditional festivities or events”  including “religious processions”‘ (para 8.2) and thereby seeks to exclude majority practices and traditions from the scope of the prohibition. In the absence of ‘reasonable and objective criteria’ to legitimise such differential treatment, the law directly discriminates against the primary group that has not been granted an exemption. Although it may be been useful for the HRC to unpack whether it considered the law to be directly or indirectly discriminatory, the significance of the finding of intersectional discrimination is not diminished.

Finally, the approach adopted by the HRC to the French government’s argument that the ban pursued the aim of gender equality can also be positively contrasted with the approach adopted by the ECtHR in relation to the same argument. While both bodies reached the same conclusion – that the burqa ban could not be justified by reference to gender equality – the HRC’s consideration of the argument was considerably more nuanced than that of the ECtHR.

The ECtHR has been subject to significant criticism for too readily accepting that Islamic clothing is incompatible with gender equality. In SAS v France, the ECtHR seemed to reverse its previous approach and 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). While this was undoubtedly a positive development in the ECtHR’s jurisprudence, both approaches adopted by the ECtHR are arguably overly simplistic. In contrast, in Yaker, the HRC recognised that ‘some women may be subject to family or social pressures to cover their faces’ but also observed ‘that the wearing of the full veil may also be a choice’ (para 8.15). This more nuanced approach, which recognises that Muslim women are not a homogenous group, is developed in the first joint concurring opinion annexed to the decision, which acknowledges that that burqa is potentially discriminatory. On this basis, the joint concurring opinion accepts that the restriction seeks to protect ‘the rights and freedoms of others’ and therefore pursues a legitimate aim under article 18(3) ICCPR. However, it goes on to note that the blanket nature of the ban that imposes a criminal sanction penalizes ‘the very women such a ban would purpose to protect’ (para 3). Consequently, they suggest ‘less intrusive measures’ could have been adopted ‘such as education and awareness-raising against the negative implications of wearing the full-face veil, criminalizing all forms of pressure on women to wear such a veil and a limited ban enforced through appropriate non-criminal sanctions’ (para 3). In so doing, this joint opinion highlights that if States are serious about combatting discrimination against Muslim women, then measures must seek to protect those who require protection whilst simultaneously ‘respecting the rights to privacy, autonomy and religious freedom of the women themselves’. This moves past the reductionist understanding of religious symbols as inherently positive or negative phenomena. Non-legislative measures may be not only be more effective than blanket bans but are more likely to respect the autonomy of Muslim women and allow them to exercise the right to manifest religion.

The HRC’s decision in Yaker is a positive development in this field, particularly as the HRC elaborates its decision in sufficient detail to explain its departure from the ECtHR’s decision in SAS. While the ECtHR expressed reservations in SAS about the approach adopted by France, the extremely broad margin of appreciation in this case ultimately eroded the core of the right to manifest religion. In contrast, the HRC’s detailed consideration of the merits reveals that the finding of violations of article 18 and 26 ICCPR is underpinned by a faithful interpretation of these rights and a nuanced consideration of how States can seek to approach complex societal phenomena whilst respecting rights of potentially vulnerable groups.