Burkini Ban: Violating both facets of religious freedom

This blog post is by the undergraduate LLB (Hons) candidate Shanardra Fadhilah. It is based on the presentation she gave at the recent Lawyers Without Borders conference hosted at the University of Aberdeen, which she was selected to give after winning a competition amongst her fellow students.

Take a deep breath and focus on your thoughts. At your core, what guides your actions? Your moral compass? Your conscience? The values instilled in you since young? For a lot of people these all fall under one umbrella – religion. It serves as a compass for the right and wrong, a conscience to guide them through the grey area and a set of values to uphold throughout life.

Religion continues to be fundamentally important in society. Hence why it is still maintained as a human right – a right one has for simply being human. As a human right, freedom of religion is enshrined in various international instruments, including Article 18 of the Universal Declaration of Human Rights and the two international human rights covenants (on civil and political rights and economic, social and cultural rights) as well as Article 9 of the European Convention of Human Rights.

In the mentioned instruments, freedom of religion is captured as a 2-dimensional right that may be exercised alone and in community with others. The first aspect speaks of the right to freely choose one’s own religion. This is absolute in nature and cannot be circumvented. The second aspect is the right to manifest religion, which on the other hand can be limited. Even so, rule of law requires the limitations be necessary and legitimate. The main reasoning for the constraint is because the right to manifest religion bleeds into the public sphere. In order to safeguard the rights and freedoms of others, this limitation is needed so that human rights do not conflict with each other.

But as with most things, a simple categorical division on paper does not accurately reflect the reality. Religion is not something that is only practiced in private or can be separated from the public sphere. This is reflected in the second strand of religious freedom: the right to manifest religion. However, the fundamental freedom to choose one’s religion is intrinsically connected with the right to manifest it. A person chooses their religion because they agree with its teachings and want to practice it. Thus, it follows that the right to choose one’s religion is only as useful as its right to manifest it.

Religious manifestation includes religious expression, which is where religious clothing stems from. This brings us to the issue at hand: the burkini ban in France.

In 2016, mayors in about 30 French coastal resorts banned the burkini. Although not expressly stated, the clothing banned is indicative of a burkini and mainly target female Muslims who wear them in beaches. In late August of last year, the Council of State held that the ban in one of the towns was a serious and manifestly illegal attack on fundamental freedoms. Local authorities could only curb individual freedoms if there was a “proven risk” to public order. Significantly, it was ruled that, “the emotion and the concerns arising from terrorist attacks” was not legally sufficient to justify a ban.

While this ruling may set a precedent for the other French towns, which have implemented the burkini ban, after the ruling some mayors have said they would refuse to lift the decree. There are several arguments put forward in favour of the ban. The burkini is allegedly an affirmation of political Islam in the public space and incompatible with the French concept of secularism. Furthermore, it is argued that the ban will allow for social and cultural integration; ultimately, serving to empower women.

A similar development is the burqa or face veil ban in France that was introduced in 2010. It makes it illegal for a person to conceal their face in a public place. This has also been criticised as targeting Muslim women. In the case SAS v France (reported at (2015) 60 EHRR 11) the European Court of Human Rights upheld the ban and accepted that the French are seeking to protect social interaction between people.

But, at a closer glance, this argument is actually counterintuitive. How does criminalizing a deeply significant form of religious clothing serve to improve social interaction when it will only further segregate them from society as they opt not to go to public spaces?

Furthermore, note that the ‘margin of appreciation’ allowed for the qualified right to manifest religion displays that the different national contexts require for varying implementation of the right. If we extract this line of reasoning – we can apply it to the conception of human rights in general.

Why do we so easily ignore the fact that there are various frameworks for human rights and favour the ‘universal’ conception? Setting aside pragmatism for a moment, it seems strange that Court allows for a wide margin of appreciation for enforcement of the right to manifest religion but no consideration is given to the different cultural conceptions of human rights. This is significant because the different conceptions result in different understandings of human rights. It is connected to the degree of importance attached to the right to religious manifestation and expression by various faiths that is not reflected in most international human rights documents.

These stances against specific styles of dressing are not at all uncommon. When you look at the development of society, there were various cases when the introduction of novel fashion trends have been met with opposition as it does not fall in line with the societal values of the time. But this current move in Western culture towards wearing as little clothing as possible being equated to the emancipation of women is misleading as empowerment actually comes from choicenot a certain style of dressing.

For Muslim women, it is the act of dressing modestly which reflects their choice to submit to Islam. This is the root for wearing the burkini. It is a cultural interpretation of modesty as mandated by religion. So when this dress is banned – the consequences are not only literal but transcends to the constraint of the fundamental exercise of the religion. It is the criminalisation of being a Muslim woman who wants to go to the beach but also maintain her modesty.

Essentially, here the State is enforcing how strictly a woman can follow their religious teachings. The state has criminalized a form of religious expression and in doing so constrained the overall religious freedom in general. Religious clothing is highly important to Muslim women who choose to manifest modesty in such form. The burkini ban was enacted to respond to the terrorist threat in France. But placing the blame for such terrorist attacks on the whole Muslim community, especially the female Muslims does not make sense. Human rights should not be curbed discriminatorily – let alone as a method to punish a large group of people for the actions of a few.

Syrian Refugees in Europe: what’s happening?

The following is the text of remarks made by our Dr Justin Borg-Barthet at a panel discussion organised by the Aberdeen University Yad’am Society on 6 February 2017.

Introductory remarks

To begin with, it is worth considering why we in Europe should be concerned about the Syrian refugee crisis.  Syria, after all, is not a European state and Syrians do not traditionally consider Europe to be their most immediate cultural hinterland.  It is arguable, therefore, that Syria and Syrian refugees are not European problems.

But let’s be clear that since the end of the Second World War, at least, we have all embraced the principle of a common humanity.  This is not merely a political statement, but is a principle entrenched in international law – like the 1951 Refugee Convention – and in the human rights law of the European Union and the European Convention on Human Rights (ECHR).

In the spirit of a broader humanity, I will not confine my comments to matters solely pertaining to the Syrian crisis.  That crisis is simply the most recent in a series of developments which have seen the European Union fall short of its humanitarian and human rights obligations in respect of refugees and asylum seekers.  It illustrates, in stark terms, an ongoing systematic and systemic problem in the EU’s relations with its neighbourhood.

In these brief remarks, I will address two main points.  First, I wish to highlight a failure to comply with obligations.  Secondly, I will consider briefly the constitutional policy implications of this failure, and make modest recommendations about how the Union could seek to address persistent problems.

Humanitarian and human rights obligations

EU human rights law has come a long way since the first steps towards European integration in the 1950s.  This is most clearly seen in recent judgments of the Court of Justice of the European Union (CJEU) regarding relocation of asylum seekers.  In the NS case, Afghan asylum seekers in the UK were to be returned to Greece, which was their point of entry into the EU.  Under the Dublin Regulation, Greece was responsible for processing the asylum claim.  It was found, however, that the applicants’ right to be free from inhuman and degrading treatment would be at risk due to systemic problems in Greece.  It followed that the UK could not return the asylum seekers.

The decision of the CJEU is, of course, to be applauded.  It demonstrated a shift in emphasis from the rights of states to those of individuals.  However, that judgment did nothing to alter the facts on the ground for most asylum seekers in Europe.

Reception conditions

Greece, Italy and Malta are the main ports of entry for refugees and asylum seekers from Africa, the Middle East and further afield.  Each of those states has been found to be in breach of the European Convention on Human Rights due to their inadequate treatment of refugees (e.g. M S S v Belgium and Greece (2011) 53 EHRR 2; Aden Ahmed v Malta ECHR App No 55352/12 (23 July 2013); Hirsi Jamaa v Italy (2012) 55 EHRR 21).  In particular, reception conditions have been found to breach the prohibition of the right to liberty (due to forced detention) and, consequently, the prohibition of torture (due to the adverse effects of detention on mental health).

The problems in these three states are compounded by the fact that they bear the brunt of responsibility for dealing with migration to the EU.  Whatever lofty declarations are made in the north and west of Europe, and despite images of hundreds of people trekking across a continent, the fact remains that pressures are concentrated in a small number of member states, which brings us to another problem of so-called burden sharing.

Burden sharing

A number of EU member states have long argued that there should be a system of compulsory burden sharing.  In other words, the responsibility for hosting and processing asylum seekers should be shared between the Member States rather than being concentrated in border-states.  The Geneva Convention arguably requires burden sharing as a matter of international law.  EU law itself is founded on the principle of solidarity between states and people.

But still, wealthier states which are geographically insulated from the crisis have resisted compulsory burden sharing.  Instead, they initially accepted a voluntary system.  Latterly, a system of agreed relocation has been put into place, but the Member States have been very slow in taking any practical steps to ensure that pressures are distributed.

This is important to member states which face significant financial and social burdens.  And because of those burdens, it is also important to asylum seekers.  No member state is able single-handedly to accommodate and welcome the numbers that have been crossing the Mediterranean Sea.  In the absence of collective action, asylum seekers remain vulnerable to the inadequacies of ill-equipped states.

Relocation to third countries

Following repeated failures in seeking compulsory burden-sharing within Europe, southern EU member states have changed their strategies.  Rather than advocating relocation of asylum claimants within the EU, they have successfully argued for the externalisation of problems through so-called reception centres in Turkey and Libya.  An agreement with Turkey is now fully operative.

Of course, there is nothing wrong, in principle, with supporting Turkey in its own efforts to provide reception to migrants, or in discouraging dangerous sea-crossings.  But the fact is that, for all the failures of EU member states, the treatment of asylum seekers in Turkey and Libya leaves far more to be desired.

You may recall that I mentioned the judgment in NS earlier.  In that case, it was decided that Member States could not return migrants to other EU States if there were systemic problems in the destination state.

There is no logical reason why that principle should not be applied between the EU and third countries in the same manner as it is applied within the EU.  Fundamental rights, after all, bind the member states whether they are acting unilaterally or collectively.  The principle of non-return in the judgment in NS should preclude the return of asylum seekers to Turkey.  Yet, just last week, the informal council meeting in Malta concluded that the Turkey agreement should be replicated in Libya.  Far from questioning the strategy, the Member States are seeking instead to entrench and extend it to ever more questionable destinations.

Tellingly, humanitarian corridors were not addressed in the council conclusions, but were determined to be a matter for the future.  We will deal with that once we have secured the border.  Now where have we heard that before?

Constitutional observations

The refugee and migrant crises expose cracks in the institutional architecture of the European Union.  There has been a consistent failure to act according to constitutional principles due to the stranglehold that the member states hold over law and policy-making processes.  If they refuse to act, the Union’s principles are meaningless in practice.  While the EU rightly baulks at President Trump, its own record of treatment of refugees has not been pristine.

Of course, it is difficult for the Union and Member States to act when public opinion is unsupportive.  But let’s not forget that public opinion is divided.  It is far from unanimous in its opposition to migration.

And there is equally a great danger in failing to uphold and defend principles.  If constitutional principles are not upheld, this lends an air of legitimacy to the ideologies that are threatening the EU’s collective model itself.  By reducing the stranglehold of states, and focusing instead on representation of people and rights of people, the Union could ensure that collective action remains possible, and that it is given further effect in future.

In other words, far from the answer being less Europe; far from the answer being the dismantling of Schengen; and far from the answer being border fences between states; the answer is a more principled Europe – a more meaningful European Union that is capable of acting internationally in accordance with its founding principles.

Dr Borg-Barthet is the co-author (with Carole Lyons) of an analysis article in the 2016 Edinburgh Law Review. ‘The European Union Migration Crisis’ is currently the ‘Most Read’ article online.

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The poster for the recent event hosted by the Yad’am Society

Exploring and combining the Human Rights Act 1998, intellectual property and EU competition law – while we still can

This blog post is by Dr Abbe Brown, Reader.

The prospect of the UK leaving the EU has, as already explored elsewhere on this blog, significant legal implications. So too would the possible repeal of the Human Rights Act 1998, perhaps to be replaced by a Bill of Rights.  One implication relates to proposals I put forward in my 2012 monograph Access to Essential Innovation and Technology: Intellectual Property, Human Rights and Competition.

These three legal fields of intellectual property (“IP”), human rights and competition were combined in the book as they can be relevant to questions of access to technologies from different perspectives.

Taking access to medicines as an example:

  • IP encourages the developing of new medicines by conferring exclusive rights and the ability to charge licensing fees;
  • the right to life indicates that there should be access to medicines, without money being an obstacle; and
  • competition law, in its prohibition on abuse of a dominant position, objects to an IP owner having too much power.

It is of course possible for these three fields to co-exist and complement each other: IP develops medicines to further the right to life and rewards the activities of innovators, and the ultimate goal of both IP and competition has been argued to be to encourage innovation. Yet conflict is possible; and this can be entrenched by the fact that within the UK jurisdictions there are significant differences in the extent to which each field can be the base of an action.

The book developed a means of enabling these three legal fields to be combined in judicial decision making in the UK, to deliver greater access to technology while still respecting the contribution which IP can make to developing innovation. At the heart of the book’s proposals are firstly a Human Rights Emphasis, which is a framework for enabling courts to consider the wide range of human rights relevant to a dispute to establish what is meant by delivering decisions (in light of the Human Rights Act 1998 and also EU fundamental rights) which are “consistent with human rights”; and secondly there is a new, human rights influenced, approach to the “Euro-defence” (a term explored in this resource from the law firm Slaughter and may (PDF)) and the case law on when refusal to license IP could be an abuse of a dominant position.  These two approaches could lead to courts, in some cases, finding that what seemed to be IP infringement from a pure IP law perspective was not in fact so.  The book then went on to argue that this approach was consistent with UK’s responsibilities to IP owners under the European Convention on Human Rights, and also obligations to protect IP under TRIPS, the IP element of the World Trade Organization  (“WTO”) Agreement. As a result, the approach and the UK would not be vulnerable to challenge at the European Court of Human Rights and through WTO dispute settlement.

The book develops its arguments through several scenarios, across health, communications, and the environment, with a range of outcomes depending on the facts. The proposals have been well reviewed (and also termed “possibly heretical” (Stothers 2013)) and stimulated wide interest among lawyers and IP owners, notably at the Licensing Executive Society International Conference in 2011.

Looking forward it does seem possible that there will be some sort of a Bill of Rights and also be some sort of competition law framework in post-Brexit UK, yet  in these new regimes human rights and competition may not have their present special legal status that has enabled the societal objectives (other than short term reward of innovation) to prevail.

My ongoing work (including blog posts of 26 November 2015, 2 May 2016, and 26 July 2016) explores how the interaction between legal fields can be further developed, including by looking beyond the Human Rights Act 1998 and EU competition law. (This could be serendipitous, given the current political situation.)  For now, the arguments developed remain a valuable tool for experimentation by lawyers and activists who are faced with IP obstacles to using technologies to pursue important goals.

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