Minority Rights 60 Years after the UDHR: Limits on the Preservation of Identity?

Chapter 8
Minority Rights 60 Years after the UDHR: Limits on the Preservation of Identity?

Tawhida Ahmed and Anastasia Vakulenko

1. Introduction

The international response to the question of what to do with ‘minorities’ has been far from static, oscillating between assimilationist and protectionist attitudes. The current trend rests on a sharp turn from international law’s previously passive attitude towards diversity to one which values pluralism and recognizes the need to preserve identities of all groups in society. The impetuses for this were numerous, not least the stark recognition that unity of identities which the nation-state model pursued was simply not working either to protect the basic rights of some individuals or, fundamentally, to address the types of tensions and conflicts in the world which the international community sought to prevent. There have been signs, therefore, since the 1970s and 1980s that the international community has incorporated into its human rights rhetoric, activities and instruments, the ideal of respect for plurality of identities. Nonetheless, as this chapter demonstrates, the recent case law before the Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR) do not always follow a preservation of identity approach. Although international law appears to have a pluralist vision, on closer examination this is rather limited.

That this resistance to the concrete recognition and protection of minority rights, even today, pervades the – still Western state-centric – international arena is not surprising, given the practical implications that the recognition of minority rights holds for the autonomy with which the modern nation state can regulate its own territory. These practical implications are perhaps more far-reaching than those involved in the recognition of any other set of human rights. Minority rights go to the heart of what defines the very essence of individuals, their beliefs and belongingness. Negotiating the boundaries and legitimacy of such beliefs in legal terms is indeed an insurmountable challenge at times, which may not always produce an outcome favourable to the minority. This chapter argues that even where this is the case, international courts and tribunals, at the very least, need to be more transparent and elaborate in more detail the grounds on which they reach their decisions than they have done to date. A failure to do so puts forward an image of an international judicial body that is reluctant to uphold the pluralist identity agenda projected by international law.

The chapter proceeds in two sections. Section 2 provides an outline of the development of minority rights in international law. Particular attention is paid to the fluidity of strategies adopted at the international level, especially between the objective of preserving identities and that of individual rights and equal citizenship. Section 3 provides an analysis on how the use – or lack of use – of these ideas plays out in one controversial case facing the world today – that of the religious and cultural rights of women who wear the Islamic headscarf or other forms of Islamic dress. The chapter aims at interrogating the underlying reasoning and the practical impact of the decisions in international case law on this topic. It thus also provides a current picture of the extent to which international law is effective in addressing the contemporary identity problems faced by Muslim women.

The analysis asserts that the ECtHR’s and the HRC’s attention to diversity and pluralism has been expanded in recent years, as shown by their approach to other minority issues. However, in relation to the Islamic headscarf cases, their interpretations are more restrictive. Further, the particular ways in which the two institutions have been restrictive also fail to do justice to the preservation of identity strategy that the international community seems to have explicitly adopted. They fail to do this justice either because they do not accommodate the idea of ‘preservation of identity’ or because the reasoning of the judgements fails to explain clearly the link between the manifestation of religion through the wearing of the headscarf and the harm it supposedly entails.

2. Development of Minority Rights in International Law: An Overview

While a comprehensive commentary on the development of minority rights is not feasible, a brief overview of milestones and the situation as it presently stands is given here in order to frame the subsequent analysis of the Islamic dress cases. The historical development of minority rights, both domestically and internationally, has been imbued by two opposing philosophies1 – assimilation2 and preservation of identity.3

The UDHR4 adopted in the first years of the United Nations (UN) system for international cooperation makes no mention of the rights of minorities. It embodies instead a range of other rights, such as the rights to life, liberty, security of persons, fair trial, freedom of expression, privacy and family life. This lack of explicit reference to minority rights reflected the overall attitude of the UN at the time of its creation. The UN system provided no legal guarantees to preserve minorities as separate or different from the rest of the population of a state. Minority rights were not addressed in the UN Charter and were in fact on the UN agenda as a whole in only a small measure.5 This bears a strong contrast to the targeted nature of minority rights protection which existed before 1948, arising from the post-Reformation European peace treaties and also from the subsequent League of Nations system (1919), which monitored various (ad hoc) treaty obligations through legal and political mechanisms.6

Instead, the UN’s approach to rights focused on two different goals: first, facilitating self-determination in the colonial context; and, second, on a more universal level, promoting individual human rights, in particular non-discrimination, for all persons in all states. The implied rationale for the latter was that members of minority groups would be adequately protected by rights to individual equality and that recognition of any special rights beyond that would accentuate differences and provoke political instability and disorder. Thus, homogeneity, and not pluralism, was the intention of the international community, which mirrored the concerns of states. The same attitude prevailed across the European sphere, culminating in the adoption of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1950, which neglected to include a minority rights provision.

The homogeneous basis of human rights is, however, problematic for minorities on theoretical and practical levels alike. A basic level of non-discrimination leaves no room for plurality and access to rights over and above or different from those available under equal citizenship. Further, because the equal citizen is usually modelled on the dominant majority group in the state, minorities are entitled to only those rights that are available to the majority group. This inevitably leads to some level of assimilation, which, contrary to the belief of the state, fosters ill-feeling of the minority towards the majority and leads to conflicts. As such, attempts by the international community to de-emphasize the differences between groups did not lead to homogeneous societies living in harmony. Ethnic minority tensions in Africa, the Balkans and the Mediterranean provide testimony to this.

Consequently, the international community underwent a certain re-evaluation with respect to minority concerns. Two main types of international law developments that essentially entail the better preservation of identity reflect this process.

The first type is the development of minority-specific instruments and institutions, and the second is the interpretation of general human rights in a minority rights-friendly manner. The introduction of minority-specific instruments and institutions signalled a move away from the sole reliance on general human rights and anti-discrimination. The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, which was established in 1946,7 began to pay more attention to minorities directly.8 A specific minority rights provision was introduced in one of the most significant general human rights treaties adopted to date: Article 27 of the International Covenant on Civil and Political Rights (ICCPR).9 This article, the UN’s explicit provision on minority rights protection, asserts that

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion or to use their own language.

Article 27 of the ICCPR is directed at ensuring the survival and continued development of the minority identity.10 It requires both negative and positive measures of support from states,11 which are intended to achieve real equality: ‘minorities are dependent on active support from their States in order to preserve their cultural, linguistic and religious identity. Otherwise, they cannot over the long run withstand the assimilationist pressure normally exercised by the dominant majority.’12 Indeed, although Article 27 is phrased as a right of individuals, it has a group element: ‘in community with other members of their group’. This has been confirmed by the jurisprudence of the HRC.13

In addition to Article 27 of the ICCPR and largely due to the experiences of the Cold War, the (non-binding) UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was adopted in 1992,14 the Working Group on Minorities was established in 1995,15 and an Independent Expert on Minority Issues was introduced in 2005 to promote the implementation of the UN Declaration within states, by engaging both with governments and non-governmental organizations. Further, the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief16 represents the UN’s attempt to provide the right to freedom of religion some specialist legal protection. Additional relevant mechanisms include the UN Convention on the Prevention and Punishment of the Crime of Genocide (1948),17 the International Labour Organization (ILO) Convention on Indigenous and Tribal Peoples (No. 169) of 1989,18 the UN Declaration on the Rights of Indigenous Peoples of 2007,19 and the continuing efforts of the UN Permanent Forum on Indigenous Issues, which promotes the rights of indigenous communities. The general objective of these developments was, and remains, the preservation of identity through a preventive approach to breaches of minority rights.20

At the same time as these global developments, the Council of Europe (CoE) has produced legal and policy instruments affecting minority rights both generally and under specialized minority units. It introduced the European Charter for Regional or Minority Languages (ECRML)21 in 1992 and the Framework Convention for the Protection of National Minorities (FCNM)22 in 1994. Although these instruments contain escape clauses and weak phraseology, the underlying language is still in sharp contrast to the previous equality stance of the CoE in relation to diversity within states.23 The CoE also has a group of experts on the Roma minority as well as the European Commission against Racism and Intolerance. Moreover, Protocol 12 to the ECHR guarantees an independent right of non-discrimination to persons on grounds of membership of national minority groups, thus finally overcoming the limits of Article 14 of the ECHR.24

There is thus an array of international law mechanisms in place for the protection of minority rights which attempt to support a preservation of identity approach. Although there is no legally binding definition of the term ‘minority’,25 an important point to note is the emphasis by, inter alia, the HRC26 and the CoE27 in some aspects of their activities, on self-identity. Self-identity essentially connotes autonomy. It refers to the right of individuals to decide whether or not they belong to a minority (although an individual cannot choose arbitrarily to belong to any minority without some objective links to that identity).

The second type of development at international level concerning minorities is the interpretation of general human rights provisions in a manner which takes into account their minority dimensions. Thus, the particular interpretation given in a decision or judgement is informed by the fact that the applicant is a member of a minority group. For example, In Lovelace v Canada,28 the HRC considered that a law which restricted residence in Indian reserves to certain Indian groups was a breach of the freedom of residence of others (Article 12 of the ICCPR) but that, together with Article 27, it was justified by reference to the need to protect and preserve the identity of the Indian indigenous community. Article 12 was therefore given a certain minority dimension. Under Article 14 of the ICCPR, procedural rights within states have also been interpreted with a minority dimension. Thus, states must take into account the effect that financial penalties in judicial proceedings may have on disadvantaged minority groups.29 In addition, Article 14 provides linguistic minorities with the right to conduct court proceedings in the language of their choice if they are insufficiently proficient in the official language of the court.30

With respect to freedom of expression and association, international decisions have been protective of the political activity of minorities.31 A democratic society cannot automatically dissolve a political party just because it seeks solutions for the needs of a minority group, even if that party calls for secession. Any exceptions to this under Articles 10 and 11 of the ECHR, together with the state’s margin of appreciation in the field, are strictly construed.32 Similarly, taking measures against a group for materials they published in relation to the situation or claims of a minority group is disproportionate to Article 10 of the ECHR.33 The ECtHR in Sidiropoulos and Others v Greece34 maintained that ‘the existence of minorities and different cultures in a country was a historical fact that a “democratic society” had to tolerate and even protect and support according to the principles of international law’.35

Further, international law principles have emerged on the right to a way of life of a minority. The right to privacy, family life and the home36 allows for a broad spectrum of minority lifestyle features to be brought into play in the human rights field. Under Article 17 of the ICCPR (privacy and family life), the HRC has held that minorities are entitled to register names in accordance with their religious affiliation.37 The HRC has given a broad interpretation to the term ‘family’, to include ancestors based on ‘family’ as understood in the cultural traditions of an indigenous group.38 With regard to Article 8 of the ECHR, ‘home’ is widely interpreted to include the caravan site of gypsies,39 and, as illustrated in Connors v UK,40 it imposes a positive obligation on states to facilitate the gypsy way of life. To this end, freedom of movement provisions in the ECHR41 can facilitate a right to practise nomadic lifestyles by guaranteeing non-discrimination in relation to movement. Finally, in relation to anti-discrimination, the D and H case (at the ECtHR)42 indicates a willingness to recognize indirect discrimination of state policies against minority groups. In this case, pupils who fell below a certain level of an intelligence test were placed in special schools which demanded less in terms of academic ability and hence affected their eventual employment prospects. The fact that the overwhelming majority of the children placed in these schools were of Roma origin constituted indirect discrimination.

All of these factors indicate that while the international community is committed to an individual and equality-based protection of human rights, there is accommodation within that and beyond that for the protection of the diverse needs of different groups in society. The preservation of identity thus frames the rhetoric and values of the system of international protection of human rights in the present. International courts and tribunals have been implementers of this approach and, at times, initiators in that regard. As noted at the outset, however, the case of the Islamic headscarf contradicts this approach and provides little support for the elements which require preservation of identity. It is to this case study that the chapter now turns.

3. The Islamic Headscarf as a Case Study

For some years, various prohibitions on the wearing of the Islamic headscarf have been the stuff of international news as well as human rights litigation within the UN and Council of Europe systems. Current international human rights law tends to view such cases under the more general, ‘universal rights’ heading of religious freedom, protected by Article 9 of the ECHR and Article 18 of the ICCPR respectively. Yet, the Islamic headscarf is also an obvious minority issue as it is a uniquely Muslim practice. This part of the chapter will show how international human rights law provides a less than robust form of protection against national assimilationist policies in respect of the headscarf. This is an arguably incompatible outcome with the currently prevalent preservation of identity rhetoric.

The failure is twofold. First, where some sort of understanding of preservation of identity can be found in the cases, the adjudicating bodies’ approach still falls short of the international community ideal (as explained in the previous part of the chapter). There is a big question mark over the acceptance of the headscarf as a manifestation of the Islamic religion (in other words, a minority identity). Second, the adjudicating bodies fail to clearly spell out their reasons for refusing the applicant’s claim; in other words, to explain the link between the manifestation of religion through the wearing of the headscarf and the harm it supposedly entails. The chapter proceeds accordingly.

3.1 The Headscarf as a Manifestation of Islamic Identity

To begin with, there has been a reluctance in international human rights jurisprudence to accept that Islamic headscarves could even be an issue of freedom of religion, as protected by human rights law. In Senay Karaduman v Turkey,43 a university graduate could not obtain a provisional certificate confirming her qualifications because the university rules required her to submit a photograph with an uncovered head in order for such a certificate to be issued. She alleged breaches of Article 9 of the ECHR (freedom to manifest one’s religion, ‘in public or private’, in ‘worship, teaching, practice and observance’) and Article 14 of the ECHR, which prohibits discrimination in the exercise of other ECHR rights on a number of grounds – in this case nationality. The case originated in Turkey. Although Turkey’s population is overwhelmingly Muslim, in a certain sense Muslims are a minority in Turkey. Numerical status is not decisive in determining whether a group qualifies as a minority, with vulnerability and political non-dominance being more important factors.44 Practising Muslims have thus been a consistently disadvantaged group in Turkey since the change of regime in 1923, when Turkey embraced Western-style democratic secular values.45 The wearing of Islamic headscarves is considered to be antithetical to these, and has been legally restricted since the 1930s as part of Turkey’s thorough secularization.46 Thus, Muslims who want to wear a headscarf are a minority – as opposed to the officially endorsed ‘modern’ secular(ized) Turkish identity – if not numerically.

The Karaduman case did not pass the admissibility stage, having been declared ‘manifestly unfounded’. As regards the Article 9 complaint, the European Commission on Human Rights (ECmHR) was of the opinion that the article in question ‘does not always guarantee the right to behave in public in a way dictated by this conviction’, and that ‘the term “practice”, in the sense of paragraph 1 of Article 9 … does not denote any act motivated or inspired by a religion or a conviction’.47 This essentially meant casting Islamic headscarves outside the scope of Article 9 (which was the primary legal basis on which the case was decided).

This stance can be contrasted with previous decisions of the HRC under the UN human rights system. In one decision, a turban worn by a Sikh man was accepted by the committee as a manifestation of his religion.48 In Boodoo v Trinidad and Tobago,49 the beard of a Muslim man was regarded as one element of his manifestation of the Islamic religion. In addition, in General Comment 22, the HRC stated that ‘[t]he observance and practice of religion or belief may include not only ceremonial acts but also such customs as … the wearing of distinctive clothing or headcoverings …’.50

The ECmHR’s ruling that the headscarf worn by the applicant in Karaduman does not in this case represent a manifestation of the Islamic religion seems out of line with this approach, particularly because the applicant’s contention that she wore the headscarf for religious purposes was ignored. This reluctance at the initial step of human rights protection is problematic for the preservation of identity approach. It takes away the right of the individual to decide which aspects of his or her actions are of a religious representation and therefore the autonomy and freedom to shape his or her own identity.

In 2001, the ECtHR delivered its decision as to the admissibility of the case of Dahlab v Switzerland,51 which involved a teacher in a state school who had been wearing an Islamic headscarf to work for five years before she was asked to remove it. The reasons for the objection were similar to the Turkish ones; that is, the need to protect the constitutionally embedded principles of denominational neutrality (the Swiss equivalent of secularism) and gender equality. Before the ECtHR, Dahlab relied on Articles 9 and 14 of the ECHR (alleging discrimination on the grounds of sex). Like Karaduman’s, Dahlab’s case was also declared ‘manifestly ill-founded’, but the ECtHR’s reasoning in this decision is more detailed, and is generally regarded as a critical point in the development of the ECHR jurisprudence on Islamic headscarves.

In contrast to Karaduman, Dahlab argued that she wore the headscarf for aesthetic, and not for religious, reasons. The Federal Court in Switzerland was unwilling to accept this, describing the headscarf as a ‘manifest religious attribute in this case’,52 which derives from passages of the Koran,53

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