Ch. 07-International Human Rights

I ntern ational Human Rights

PHILIP

ALSTON

Citation. Philip Alston, International Human Rights (New York, NYU Law, 2024).

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Chapter 7. Conflict in Culture, Tradition and Practices: Challenges to Universalism

A. UNIVERSALISM AND CULTURAL RELATIVISM

The question of the ‘universal’ or ‘relative’ character of human rights has been a source of debate and contention from the outset. These divergent understandings of the nature of human rights have sometimes been cast as alternatives, as polar visions with no intermediate ground between them, and sometimes as allowing for a more complex view that understands some norms as universal and others as relative to context and culture. The generally antagonistic positions have borne a number of descriptions for example, ‘absolute’ (‘universal’) as opposed to ‘contingent’ (‘relative’), or imposed (‘universal’) as opposed to self-determined (‘relative’) rights. The contest between these positions took on renewed vigour as the human rights regime slowly developed, and in important respects weakened, earlier more robust understandings of the scope of national sovereignty and of domestic jurisdiction. Indeed, significant links have developed over the decades between some of the claims associated with cultural relativism and claims of sovereign autonomy for a state to follow its own path.

Put simply, the partisans of universality claim that international human rights like rights to equal protection, physical security, fair trials, free speech, freedom of religion and free association are and must be the same everywhere. This claim applies at least to the rights’ general content, for advocates of the position that rights are universal of course recognize that many basic rights (such as the right to a fair criminal trial) allow for historically and culturally influenced forms of implementation or realization (i.e., states are not required to use the Anglo-American jury to assure a fair trial; states need not follow any one particular voting system to meet the requirement of a government that represents the will of the people).

Advocates of cultural relativism claim that (most, some) rights and rules about morality are encoded in and thus depend on cultural context. They often use the term ‘culture’ in a broad and diffuse way that reaches beyond indigenous traditions and customary practices to include political and religious ideologies and institutional structures. Hence notions of right and wrong, and moral rules based on them, necessarily differ throughout the world because the cultures in which they take root and inhere themselves differ. This relativist position can thus be understood simply to assert the empirical claim that the world contains an impressive diversity in views about right and wrong which is linked to the diverse underlying cultures.

But the strong relativist position goes beyond arguing that there is as a matter of fact, empirically an impressive diversity of rights and moralities. It attaches an important consequence to this diversity: that no transcendent or transcultural ideas of right can be found or agreed on, and hence that no culture or state (whether or not in the guise of enforcing international human rights) is justified in attempting to impose on other cultures or states what must be understood to be ideas associated particularly with the imposing culture. In this strong form, cultural relativism necessarily contradicts a basic premise of the human rights regime. Its core values are respect for diversity and the related local autonomy.

Mayanthi Fernando, in ‘Cultural Relativism’, Oxford Bibliographies in Anthropology (2013) gives an overview of the different forms of relativism:

In a 1580 essay called “On the Cannibals,” early Enlightenment thinker Michel de Montaigne posited that men are by nature ethnocentric and that they judge the customs and morals of other communities on the basis of their own particular customs and morals, which they take to be universally applicable. Montaigne’s essay foreshadowed the emergence in early 20th-century American anthropology of the principle of cultural relativism in a more robust and programmatic form, as a descriptive, methodological, epistemological, and prescriptive approach to human diversity. Franz Boas and his students, especially Melville J. Herskovits, were at the forefront of this new development, one that became foundational to modern anthropology. Against the biological and racial determinism of the time, they held that cultures develop according to the particular circumstances of history rather than in a linear progression from “primitive” to “savage” to “civilized,” that culture (rather than race or biology) most affects social life and human

behavior, and that culture shapes the way members of a particular cultural group think, act, perceive, and evaluate. This new theorization of the culture concept led to a multifaceted approach to studying human diversity called cultural relativism. Cultural relativism is an umbrella term that covers different attitudes, though it relies on a basic notion of emic coherence: Each culture works in its own way, and beliefs and practices that appear strange from the outside make sense when contextualized within their particular cultural framework. More specifically, descriptive relativism holds that cultures differ substantially from place to place. Methodological relativism holds that the ethnographer must set aside his or her own cultural norms in order to understand another culture and explain its worldview. Epistemological relativism holds that because our own culture so mediates our perceptions, it is often impossible to fully grasp another culture in an unmediated way. Prescriptive or moral relativism holds that because we are all formed in culture, there is no Archimedean point from which to evaluate objectively, and so we must not judge other cultures using our own cultural norms. Recently, cultural relativism has become a straw man term, defined pejoratively as the strongest form of moral relativism; namely, that we cannot make any kind of moral judgments at all regarding foreign cultural practices. At the turn of the 20th century, cultural relativism was a progressive anthropological theory and methodological practice that sought to valorize marginalized communities in an inegalitarian world. Now cultural relativism is criticized as doing precisely the opposite: allowing repressive and inegalitarian societies to hide behind the cloak of cultural difference.

On their face, human rights instruments (which in their treaty form impose legal obligations, and convert moral rules into legal rules) are surely on the ‘universalist’ side of this debate. The landmark instrument is the Universal Declaration of Human Rights, much of which has clearly become customary international law. The two Covenants, with states parties from all the world’s regions and covering a large percentage of the global population, also speak in universal terms: ‘everyone’ has the right to liberty, ‘all persons’ are entitled to equal protection, ‘no one’ shall be subjected to torture, ‘everyone’ has the right to an adequate standard of living. Neither in the definitions of rights nor in the limitation clauses (which permit states parties to restrict the enjoyment of rights because of public order, policy or health) does the text of these basic instruments make any explicit concession to cultural variation.

To the relativist, these instruments and their pretension to universality may suggest primarily the arrogance or ‘cultural imperialism’ of the West, given the West’s traditional urge expressed, for example, in political ideology (liberalism) and in religious faith (Christianity) to view its own forms and beliefs as universal, and to attempt to universalize them. Moreover, some relativists argue that the push to universalizing norms destroys the diversity of cultures and hence amounts to another path towards cultural homogenization in the modern world itself a contradiction of the value of cultural survival stressed in, for example, Article 27 of the International Covenant on Civil and Political Rights (ICCPR). But the debate between these two positions follows no simple route. It is open to a range of views and strategies.

During the Cold War, such debates (sometimes no more than highly politicized accusations and routine polemics) took place dominantly between the Communist world and its sympathizers on the one hand, and the Western democracies on the other. The Western democracies charged the Communist world with violating many basic rights, particularly those of a civil and political character. The latter replied both by charging the West with violations of the more important economic and social rights, and by asserting that the political ideology of Communism pointed towards a different understanding of rights.

That particular debate died more-or-less together with the Soviet Union, though some of its themes survive in different form, such as in disagreements between China and the United States. Today the universal-relative debate takes place primarily across Global North-Global South lines, or in a religious (West-Islam) framework. It also includes non-state actors, such as indigenous peoples.

The principle that norms are universal, which permeates the main human rights instruments starting with the Universal Declaration, rests on a few basic postulates, beliefs and assumptions. Perhaps the fundamental one is equal human dignity. Denial of that principle, at least with respect to the regulation of action and behaviour,

itself shatters universalism, without even reaching the divisive issues posed by cultural relativism. That denial has been a commonplace in world history, strikingly evident in the history of the twentieth century. Consider the following observations of a philosopher, Richard Rorty, in ‘Human Rights, Rationality and Sentimentality’, in Obrad Savić (ed.), The Politics of Human Rights (1999) 67, at 74:

… For most white people, until very recently, most Black people did not so count. For most Christians, up until the seventeenth century or so, most heathens did not so count. For the Nazis, Jews did not so count. For most males in countries in which the average annual income is under four thousand dollars, most females still do not so count. Whenever tribal and national rivalries become important, members of rival tribes and nations will not so count. Kant’s account of the respect due to rational agents tells you that you should extend the respect you feel for people like yourself to all featherless bipeds. This is an excellent suggestion, a good formula for secularizing the Christian doctrine of the brotherhood of man. But it has never been backed up by an argument based on neutral premises, and it never will be. Outside the circle of post-Enlightenment European culture … most people are simply unable to understand why membership in a biological species is supposed to suffice for membership in a moral community. This is not because they are insufficiently rational. It is, typically, because they live in a world in which it would be just too risky indeed, would often be insanely dangerous to let one’s sense of moral community stretch beyond one’s family, clan, or tribe.

To get whites to be nicer to Blacks, males to females, Serbs to Muslims, or straights to gays, to help our species link up into what Rabossi calls a ‘planetary community’ dominated by a culture of human rights, it is of no use whatever to say, with Kant: notice that what you have in common, your humanity, is more important than these trivial differences. For the people we are trying to convince will rejoin that they notice nothing of the sort. Such people are morally offended by the suggestion that they should treat someone who is not kin as if he were a brother. … They are offended by the suggestion that they treat people whom they do not think of as human as if they were human. …

… The identity of these people, the people whom we should like to convince to join our Eurocentric human rights culture, is bound up with their sense of who they are not. …

The introductory readings below come out of the rich anthropological literature on culture and cultural relativism. Anthropologists have long had to wrestle with these issues, in the context of their ethnographic writings about diverse cultures whose practices and values depart radically from the West. Often those practices would be open to serious moral criticism from the perspectives of Western thought. The anthropological writings have sought primarily to describe, explain and understand the alien culture, within the framework of one or another theoretical perspective or methodology. They have not historically sought to pass judgement, to condemn or praise, the practices they describe.

Thus the role of the anthropologist has traditionally been very different from that of the human rights investigator who monitors and reports and the human rights advocate who works to arrest the described violations. To be sure, investigators and advocates may also seek to understand and to describe the cultural contexts in which they are operating. But those working with the large international human rights organizations characteristically combine their description with moral and legal assessment of a given state’s conduct against international human rights standards. They will, in appropriate cases, condemn the state’s conduct and urge the state or others to take corrective or coercive measures. Their work is inherently judgmental and normatively based. They seek to vindicate and advance respect for human rights.

Mark Goodale observes, in Anthropology and Law: A Critical Introduction (2017) 96, that the ‘anthropology of human rights has developed innovative approaches in methodology, epistemology, and ethics such that an anthropological perspective is now a common presence within academic debates over human rights, within international institutional policy making, and among human rights practitioners.’ This is all the more surprising given that the initial engagement between the two fields came in the form of the following statement issued in the name of the American Anthropological Association, which staked out a determinedly sceptical view. When reading it, keep in mind that the human rights regime addresses primarily states, whereas ethnographic writings

involve primarily peoples or tribes or societies. The latter may be non-state entities, and in any event are objects of study distinct from the political organization and political acts of the state itself.

AMERICAN ANTHROPOLOGICAL ASSOCIATION, STATEMENT ON HUMAN RIGHTS 49 AMER. ANTHROPOLOGIST (1947) 539

[In 1947, the UN Commission on Human Rights had begun drafting what ultimately became the UDHR of 1948. The Statement below was submitted as a contribution to the debate by the Executive Board of the American Anthropological Association, although in fact it was written entirely by Melville Herskovits and not subjected to scrutiny or debate by the AAA membership.236 It uses several designations to refer to the pending document that became the UDHR.]

The problem faced by the Commission on Human Rights of the United Nations in preparing its Declaration on the Rights of Man must be approached from two points of view. The first, in terms of which the Declaration is ordinarily conceived, concerns the respect for the personality of the individual as such and his right to its fullest development as a member of his society. In a world order, however, respect for the cultures of differing human groups is equally important.

These are two facets of the same problem, since it is a truism that groups are composed of individuals, and human beings do not function outside the societies of which they form a part. The problem is thus to formulate a statement of human rights that will do more than just phrase respect for the individual as an individual. It must also take into full account the individual as a member of the social group of which he is a part, whose sanctioned modes of life shape his behavior, and with whose fate his own is thus inextricably bound.

… How can the proposed Declaration be applicable to all human beings and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America? …

If we begin, as we must, with the individual, we find that from the moment of his birth not only his behavior, but his very thought, his hopes, aspirations, the moral values which direct his action and justify and give meaning to his life in his own eyes and those of his fellows, are shaped by the body of custom of the group of which he becomes a member. … [I]f the essence of the Declaration is to be, as it must, a statement in which the right of the individual to develop his personality to the fullest is to be stressed, then this must be based on a recognition of the fact that the personality of the individual can develop only in terms of the culture of his society.

…

… Doctrines of the ‘white man’s burden’ have been employed to implement economic exploitation and to deny the right to control their own affairs to millions of peoples over the world, where the expansion of Europe and America has not meant the literal extermination of whole populations. Rationalized in terms of ascribing cultural inferiority to these peoples, or in conceptions of their backwardness in development of their ‘primitive mentality’, that justified their being held in the tutelage of their superiors, the history of the expansion of the western world has been marked by demoralization of human personality and the disintegration of human rights among the peoples over whom hegemony has been established.

The values of the ways of life of these peoples have been consistently misunderstood and decried. Religious beliefs that for untold ages have carried conviction and permitted adjustment to the Universe have been attacked as superstitious, immoral, untrue. And, since power carries its own conviction, this has furthered the process of demoralization begun by economic exploitation and the loss of political autonomy. …

We thus come to the first proposition that the study of human psychology and culture dictates as essential in drawing up a Bill of Human Rights in terms of existing knowledge:

1. The individual realizes his personality through his culture, hence respect for individual differences entails a respect for cultural differences.

236 Goodale, at 99.

There can be no individual freedom, that is, when the group with which the individual identifies himself is not free. There can be no full development of the individual personality as long as the individual is told, by men who have the power to enforce their commands, that the way of life of his group is inferior to that of those who wield the power. …

2. Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered.

This principle leads us to a further one, namely that the aims that guide the life of every people are self-evident in their significance to that people. …

3. Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole.

Ideas of right and wrong, good and evil, are found in all societies, though they differ in their expression among different peoples. What is held to be a human right in one society may be regarded as anti-social by another people, or by the same people in a different period of their history. The saint of one epoch would at a later time be confined as a man not fitted to cope with reality. Even the nature of the physical world, the colors we see, the sounds we hear, are conditioned by the language we speak, which is part of the culture into which we are born.

The problem of drawing up a Declaration of Human Rights was relatively simple in the eighteenth century, because it was not a matter of human rights, but of the rights of men within the framework of the sanctions laid by a single society. …

Today the problem is complicated by the fact that the Declaration must be of worldwide applicability. It must embrace and recognize the validity of many different ways of life. It will not be convincing to the Indonesian, the African, the Indian, the Chinese, if it lies on the same plane as like documents of an earlier period. …

In the following reading, Sally Engle Merry provides a very different understanding of ‘culture’ and how it should be understood in the context of human rights. One question is: what is being asserted by the claim that a given state or region must be free to follow its own ‘cultural tradition’, even if thereby violating norms in universal treaties? Many meanings of the term appear and disappear in this debate; often ‘culture’ as a justification for difference is not referred to as such, but is implicit in a state’s argument. Or that broad term is disaggregated into some of its complex components, such as language, religion, traditions, rituals and other practices.

Meanings of culture may also differ across the divides of different languages. Consider some definitions for ‘culture’ in the American Heritage Dictionary of the English Language (1969):

… 4. Intellectual and social formation. 5. The totality of socially transmitted behavior patterns, arts, beliefs, characteristic of a community or population. 6. A style of social and artistic expression peculiar to a society or class. 7. Intellectual and artistic activity.

SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE

(2006) 2

Chapter 1: Culture and Transnationalism

… Human rights ideas, embedded in cultural assumptions about the nature of the person, the community, and the state, do not translate easily from one setting to another. If human rights ideas are to have an impact, they

need to become part of the consciousness of ordinary people around the world. Considerable research on law and everyday social life shows that law’s power to shape society depends not on punishment alone but on becoming embedded in everyday social practices, shaping the rules people carry in their heads. Yet, there is a great distance between the global sites where these ideas are formulated and the specific situations in which they are deployed. We know relatively little about how individuals in various social and cultural contexts come to see themselves in terms of human rights.

Nor do ideas and approaches move readily the other way from local to global settings. Global sites are a bricolage of issues and ideas brought to the table by national actors. But transnational actors, and even some national elites, are often uninterested in local social practices or too busy to understand them in their complicated contexts. … Transnational reformers must adhere to a set of standards that apply to all societies if they are to gain legitimacy. …

The division between transnational elites and local actors is based less on culture or tradition than on tensions between a transnational community that envisions a unified modernity and national and local actors for whom particular histories and contexts are important. Intermediaries such as NGO and social movement activists play a critical role in interpreting the cultural world of transnational modernity for local claimants. … [T]hey take local stories and frame them in … human rights language. …

… [H]uman rights create a political space for reform using a language legitimated by a global consensus on standards. But this political space comes with a price. Human rights promote ideas of individual autonomy, equality, choice, and secularism even when these ideas differ from prevailing cultural norms and practices. Human rights ideas displace alternative visions of social justice that are less individualistic and more focused on communities and responsibilities, possibly contributing to the cultural homogenization of local communities.

…

There are several conundrums in applying human rights to local places. First, human rights law is committed to setting universal standards using legal rationality, yet this stance impedes adapting those standards to the particulars of local context. This perspective explains why local conditions often seem irrelevant to global debates. Second, human rights ideas are more readily adopted if they are packaged in familiar terms, but they are more transformative if they challenge existing assumptions about power and relationships. Activists who use human rights for local social movements face a paradox. Rights need to be presented in local cultural terms in order to be persuasive, but they must challenge existing relations of power in order to be effective. Third, to have local impact, human rights ideas need to be framed in terms of local values and images, but in order to receive funding, a wider audience, and international legitimacy, they have to be framed in terms of transnational rights principles. …

TheorizingtheGlobal-LocalInterface

The global-local divide is often conceptualized as the opposition between rights and culture, or even civilization and culture. Those who resist human rights often claim to be defending culture. For example, male lineage heads in the rural New Territories of Hong Kong claimed that giving women rights to inherit land would destroy the social fabric. … [T]hese arguments depend on a very narrow understanding of culture and the political misuse of this concept. …

Even as anthropologists and others have repudiated the idea of culture as a consensual, interconnected system of beliefs and values, the idea has taken on new life in the public sphere, particularly with reference to the global South. …

Seeing culture as contested and as a mode of legitimating claims to power and authority dramatically shifts the way we understand the universalism-relativism debate. It undermines those who resist changes that would benefit weaker groups in the name of preserving “culture,” and it encourages human rights activists to pay attention to local cultural practices. This view of culture emphasizes that culture is hybrid and porous and that the pervasive struggles over cultural values within local communities are competitions over power. More recent anthropological scholarship explores processes by which human rights ideas are mobilized locally, adapted, and transformed and, in turn, how they shape local political struggles. As Cowan, Dembour, and Wilson point out,

“Rather than seeing universalism and cultural relativism as alternatives which one must choose, once and for all, one should see the tension between the positions as part of the continuous process of negotiating everchanging and interrelated global and local norms”. Culture in this sense does not serve as a barrier to human rights mobilization but as a context that defines relationships and meanings and constructs the possibilities of action.

DeconstructingCulture

Although culture is a term on everyone’s lips, people rarely talk about what they mean by it. The term has many meanings in the contemporary world. It is often seen as the basis of national, ethnic, or religious identities. Culture is sometimes romanticized as the opposite of globalization, resolutely local and distinct. In international human rights meetings, culture often refers to traditions and customs: ways of doing things that are justified by their roots in the past. There is a whiff of the notion of the primitive about this usage of the term culture. It is not what modern urbanites do but what governs life in the countryside. Culture was often juxtaposed to civilization during the civilizing mission of imperialism, and this history has left a legacy in contemporary thinking.

There is a critical need for conceptual clarification of culture in human rights practice. Insofar as human rights relies on an essentialized model of culture, it does not take advantage of the potential of local cultural practices for change. …

… Cultures consist of repertoires of ideas and practices that are not homogeneous but continually changing because of contradictions among them or because new ideas and institutions are adopted by members. They typically incorporate contested values and practices. Cultures are not contained within stable borders but are open to new ideas and permeable to influences from other cultural systems, although not all borders are equally porous. Cultural discourses legitimate or challenge authority and justify relations of power.

Of the myriad ways culture is imagined in transnational human rights discussions, two of the most common ones reflect an essentialized concept of culture. …

[1]CultureasTradition

Within the discourse of human rights activism, culture is often used as a synonym for tradition. Labeling a culture as traditional evokes an evolutionary vision of change from a primitive form to something like civilization. … So-called traditional societies are at an earlier evolutionary stage than modern ones, which are more evolved and more civilized. Culture in this sense is not used to describe the affluent countries of the global North but the poor countries of the global South, particularly isolated and rural areas. …

Although some human rights activists refer to “good” cultural practices and “harmful” cultural practices and a few feminist scholars examine cultural practices that protect women from violence, many who write about women’s right to protection from violence identify culture and tradition as the source of the problem. … [T]he human rights process seeks to replace cultural practices that are discriminatory with other cultural practices rooted in modern ideas of gender equality. Thus, like the colonial state, they seek to move ethnically defined subjects into the realm of rights-bearing modernity. This effort sometimes demonizes culture as it seeks to save individuals from its oppressive effects.

Female genital cutting (also called female genital mutilation) is the poster child for this understanding of culture. …

[2]CultureasNationalEssence

A second common understanding of culture is as national essence or identity This concept of culture grows out of the German romantic tradition of the nineteenth century. Confronted with the claims to universal civilization of England and France, Germans began to draw a distinction between the external trappings of civilization and the inward, spiritual reality of culture. German romantics asserted the importance of a distinct culture, or Kultur,

which formed the spiritual essence of their society. Each people, or Volk, has its own history and culture that expresses its genius. This includes its language, its laws, and its religion. The cosmopolitan elite corrupts it, while foreign technological and material values undermine it. …

Culture as national essence is fundamental to claims to indigenous sovereignty and ethnonationalism, often in resistance to human rights. In 1993, when Lee Kuan Yew of Singapore claimed that human rights failed to incorporate Asian values, he drew on this understanding of culture. With support from several other Asian leaders, he argued that Asian values differed from Western conceptions of human rights. In some ways, the Asian values argument replays the German romantic resistance to French and English claims to civilization. Indeed, one critic of the Asian values argument notes that it falls into Orientalist notions of a communitarian East, with communal values, and an individualistic West.

Although the Asian values argument is less often articulated now, it represents one of many ways that leaders assert that human rights violate the fundamental cultural principles of a nation or a religion and therefore cannot be adopted.237 Women’s rights are often opposed by those who claim to defend culture. …

CultureasContentious

… Over the last two decades, anthropology has elaborated a conception of culture as unbounded, contested, and connected to relations of power, as the product of historical influences rather than evolutionary change. Cultural practices must be understood in context, so that their meaning and impact change as their context shifts. … [Cultures] include institutional arrangements, political structures, and legal regulations. As institutions such as laws and policing change, so do beliefs, values, and practices. Cultures are not homogeneous and “pure” but produced through hybridization or creolization.

… These different perspectives on culture affect policies concerning women. For example, in Uruguay’s country report to the committee monitoring the Women’s Convention, the government expressed regret that more women were not involved in politics but blamed cultural traditions, women’s involvement in domestic tasks, and the differences in wages by gender. In contrast, facing the same absence of women politicians, Denmark offered funds to offset babysitting expenses when women attended meetings. In the first case, the barrier to change is theorized as cultural tradition; in the second case, as institutional arrangements of child care. The first model sees culture as fixed; the second assumes that the meanings of gender will change as institutional and legal arrangements change.

… [C]ulture is as important in shaping human rights conferences as it is in structuring village mortuary rituals. Thinking of those peoples formerly labeled “backward” as the only bearers of culture neglects the centrality of culture to the practice of human rights. UN meetings are deeply shaped by a culture of transnational modernity, one that specifies procedures for collaborative decision-making, conceptions of global social justice, and definitions of gender roles. Human rights law is itself primarily a cultural system. Its limited enforcement mechanisms mean that the impact of human rights law is a matter of persuasion rather than force, of cultural transformation rather than coercive change. Its documents create new cultural frameworks for conceptualizing social justice. It is ironic that the human rights system tends to promote its new cultural vision through a critique of culture.

Vernacularization

In 1999, the American Anthropological Association adopted a Declaration on Anthropology and Human Rights that marked a deep change from its earlier position:

As a professional organization of anthropologists, the AAA has long been, and should continue to be, concerned whenever human difference is made the basis for a denial of

237 For a more recent analysis, see M. Thompson, ‘What’s Asia Got to Do with It? “Asian Values” as Reactionary Culturalism’, in G. Facal, E. Lafaye de Micheaux, and A. Norén-Nilsson (eds.), The Palgrave Handbook of Political Norms in Southeast Asia (2024) 277.

basic human rights, where “human” is understood in its full range of cultural, social, linguistic, psychological, and biological senses.

[The AAA, in its working definition of principles of respect for difference, ‘builds on’ the UDHR and other basic human rights covenants and conventions.] The AAA definition thus reflects a commitment to human rights consistent with international principles but not limited by them. Human rights is not a static concept. Our understanding of human rights is constantly evolving as we come to know more about the human condition. It is therefore incumbent on anthropologists to be involved in the debate on enlarging our understanding of human rights on the basis of anthropological knowledge and research.238

In the years since, the concept of ‘vernacularization’ has come to prominence in the anthropological literature. 239 In the readings below, Sally Engle Merry and Peggy Levitt explain their understanding of the concept and how it works in practice. Harri Englund then describes the distortions introduced through linguistic translation in some African contexts.240

SALLY ENGLE MERRY AND PEGGY LEVITT, THE VERNACULARIZATION OF WOMEN’S HUMAN RIGHTS

STEPHEN HOPGOOD, JACK SNYDER AND

LESLIE VINJAMURI (EDS.), HUMAN RIGHTS FUTURES (2017) 213

How do human rights travel around the world? They are created through diverse social movements in many parts of the world and crystallized into a form of symbolically universal law under the supervision of the UN and its human rights organizations. This law-like form is then reappropriated by myriad civil society organizations and translated into terms that make sense in their local communities. This is the process of vernacularization: the extraction of ideas and practices from the universal sphere of international organizations, and their translation into ideas and practices that resonate with the values and ways of doing things in local contexts. Local places are not empty, of course, but rich with other understandings of rights, the state, and justice. …

The process of vernacularization converts universalistic human rights into local understandings of social justice. While considerable scholarship on human rights sees universalism and relativism as oppositional, vernacularization bridges this divide. A focus on this process follows the trend in the anthropology of law to examine human rights in practice, exploring how they circulate, how they are adopted and used, and what forms of resistance and opposition they encounter when they come into contact with other national or religious ideologies of social justice. In contrast to scholarship on the dissemination of human rights in other disciplines, anthropology offers insights into the transformation of meanings and practices within small social settings, highlighting aspects of its circulation and use that can be obscured by the focus on the state in international relations and legal scholarship. …

Conclusions

… Human rights are only one set of ideas and approaches available to them. Some groups are deeply embedded in other justice ideologies, such as liberation theology or the feminist violence against women movement, and make only fleeting and indirect references to human rights. …

… External funding, including international funding, offers more space to move into challenging issues and to engage in work that is relatively unsupported by local and national women’s organizations and ideologies … . … The funding allows them greater latitude … [but] comes with strings attached. …

238 www.aaanet.org/stmts/humanrts.htm.

239 See generally, P. Alston (ed.), Capturing the Complexity of Human Rights: From Vernacularization to Quantification (2024).

240 For an account of how the widely-used Chinese translation of the International Covenants changed the meaning of key terms by comparison with the original text, see J. Seymour and P. Yuk-tung Wong, ‘China and the International Human Rights Covenants’, 47 Crit. Asian Stud. (2015) 514.

What does the human rights framework offer in situations in which it does not have a strong resonance or a close fit with existing ideologies? It offers the legitimation of a transnational set of standards, the magic of a universal moral code, and technologies of building cases through reporting and documentation. But perhaps the most important contribution is access to allies outside the local community. By phrasing issues in the language of human rights, they become understandable to other organizations and individuals participating in this transnational ideological system. The human rights framework itself helps ideas travel. …

Vernacularization is a process in which issues, communication technologies, and modes of organization and work are appropriated and translated, sometimes in fragmented and incoherent ways, at the interface of transnational, national, and local ideologies and practices. It is often a pragmatic strategy for mobilizing political, cultural, and financial resources. For some leaders, of course, human rights is a matter of faith and morality. Vernacularization is not a form of cultural homogenization since human rights ideas are substantially transformed by the organizations that use them. It is not a clash between universal principles and cultural relativist assertions of difference but a pragmatic process of negotiation and translation. When organizations talk little about human rights, this reflects a lack of political traction for human rights, not cultural relativist resistance. The process is a dimension of the partial, pragmatic, and unstable nature of the transnational circulation and adoption of ideas and practices that Tsing refers to as “friction,” shaped by the structural conditions under which adoption and resistance take place.

However, the need to vernacularize human rights in a way that is resonant with local cultural practices serves as a limitation on the transformative power of human rights. …

… Understanding the role of vernacularization in the human rights process highlights two dilemmas for human rights practitioners: the process of vernacularization may so attenuate the core principles of human rights that they no longer carry the meaning that is embedded in the system as a whole. Moreover, human rights as a frame of reference can be appropriated in a variety of ways, including those that violate the core principles of the human rights system itself. Nevertheless, such active appropriation and redefinition of human rights is an inevitable dimension of the global circulation of ideas and practices.

HARRI ENGLUND, PRISONERS OF FREEDOM: HUMAN RIGHTS AND THE AFRICAN POOR (2006)

47

Translation in an African context presents a set of salient empirical problems, not least because the vast majority of Africans depend on national and vernacular languages for efficient communication. Human rights discourse, as a relatively recent phenomenon associated with the post-Cold War wave of democratization, has arrived through official languages inherited from colonial rulers. [M]ajor political and cultural issues are raised by the way in which the discourse is translated … . Of fundamental importance is that translation in [Malawi and Zambia] has taken place as a “top-down” exercise, with no evidence of attempts to consult a broad crosssection of native speakers before launching a translation for human rights. “[L]ocal cultures of human rights” have been allowed little space to develop and to influence the introduction of a new discourse. Instead, activists, politicians, journalists, and others spearheading the translation have taken their particular interest in democratization as a universal concern. They have, accordingly, translated rights as freedoms, with a particular emphasis on political and civil liberties.

… Contemporary discussions about human rights, whatever the country or society in which they are held, are remarkable for the extent to which they presuppose abstraction, the ability to apply the same notions and principles across a wide variety of actual situations. …

[T]he introduction of legal language … replaces relationships with rules; situational considerations, with abstract principles. The distinction between the jural and the moral in some African languages is subverted in the postCold War preoccupation with human rights. The preoccupation has assumed a decisively legalist content. In contrast to the Kiswahili and Luganda understandings of rights as things that are associated with moral authority, itself unevenly distributed in society, the legalist discourse on human rights asserts universal equality before the law. As the supreme arbiter of conflicts and disputes, the law is regarded as being above any actual

political and cultural factor influencing those conflicts and disputes. Interestingly, a similar process of abstraction has been observed among those who seek to oppose human rights discourse by appealing to cultures and traditions. Rather than situating culture in shifting everyday practices, “culture talk” often revolves around an abstraction that is claimed to define a people’s essential characteristics. More often than not, and in postcolonial no less than in colonial Africa, such an abstraction serves elite privileges rather than the democratic expectations of rights talk.

[H]uman rights discourse even when asserting all individuals as equals can be deprived of its democratizing potential and made to serve particular interests in society. The problem, patently, is intrinsic not to particular words themselves but to translation as a cultural and political process, its own situational characteristics obscured by human rights activists’ commitment to abstraction and universalism. In Chichewa, which is the sole national language of Malawi and, known as Chinyanja, one of the seven national languages of Zambia, the established translation summons up rights as individual freedoms a highly consequential, albeit scarcely premeditated, move. Ufulu wachibadwidwe hinges on the meanings of ufulu as “freedom,” “liberty,” and “independence,” defined by the recent Chichewa/Chinyanja monolingual dictionary as “an opportunity to live freely, happily and witl1out fear’.” The adjectival wachibadwidwe uses the verb kubadwa, “to be born,” to specify such freedom as the individual’s birth right.

Pascal Kishindo, a Malawian linguist, has suggested that, despite being offered as a translation of “human rights,” ufulu wachibadwidwe is actually a new coinage. As such, the way in which Malawians and Zambians arrived at this particular coinage offers insights into the politics of translation, as do its appearances in the Chichewa/Chinyanja versions of international human rights documents and national laws. While pursuing such insights, one must keep in mind that ufulu, like most lexical items, has multiple connotations and can be used to advance competing interests. Kishindo has analyzed the shift in its primary connotations from national independence to personal freedom and liberty. Although ufulu continues to be used for independence from colonial rule, the transition to multiparty politics in the early 1990s made freedom from postcolonial dictatorship a more urgent topic in political discourse, with the plural form maufulu, “freedoms,” gaining wider currency. Its equivalent in Kiswahili, uhuru, has had a similar trajectory, evident in its application by some women for transformed gender relations. Later in this chapter I examine, however, how the emancipatory potential of ufulu is qualified by, among other things, another central concept in the Chid1ewa/Chinyanja discourse on human rights udindo, translating as “responsibility:’

The idea of responsibility merits attention, because it has proven a convenient construct for human rights activists, politicians, and journalists to counter the criticisms of their excessive emphasis on individual freedoms. Just as the idea of freedom can be conjured up to advance different political agendas, so too is it necessary to ask what kind of responsibility a particular human rights discourse exhorts. Several generations of political philosophers have understood rights and responsibilities to be entwined, and liberal egalitarianism has not been confined to individual freedoms. It has involved a commitment to securing positive rights to economic justice. …

Poor Translations for Poor People

… Translations into so-called local languages have provided one justification for many NGOs’ existence, since the translations by government departments have generally been confined to very few documents. Translations have not, however, been a priority for most donors of aid, and the work of translation has often been linked to broader programs of civic education or, in the case of some organizations, abandoned in favor of other activities. One consequence of the lack of resources is the rather haphazard manner in which translations have been commissioned and carried out. …

By granting to themselves the tasks of both translation and its quality control, activists and officers risked producing inaccurate translations. Their assumed expertise, moreover, mitigated fears of a backlash, because those who were expected to receive the translations were rarely in a position to voice public criticism. In Malawi and Zambia, no mechanism existed to ensure that the translations were not as poor as the people who were supposed to read them. …

A comparison between different translations of the [UDHR] reveals even more clearly how Chichewa/Chinyanja speakers can be disempowered by inaccurate translation. In the absence of coordination, at least two very different translations of the declaration exist, one provided by the United Nations Information Centre in Zambia and the other by the Malawi Human Rights Resource Centre, an NGQ. While somewhat abridged and simplified translations may be inevitable in a document meant for wide circulation, interesting questions are what translators omit from the original and how inaccurate translations may compromise readers’ capacity for emancipatory interpretations. For instance, the subsection 4 of Article 23 reads,

Everyone has the right to form and to join trade unions for the protection of his interests.

[The author’s translation back into English of the Malawian translation is:]

Everyone has the freedom to start or to join an organization that represents workers

[His translation of the Zambian version is:]

Every person has the opportunity to be a member of any organization that assists in his/her well-being.

… [Article 22 UDHR reads:]

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality.

[The author’s translation back into English of the Malawian translation is:]

Everyone has the freedom to get assistance from the state when well-being is undermined in accordance with the extent to which the state can assist, as well as the freedom of economic activity and of what helps him/her to foster respect, development in life and his/her humanity.

The Zambian version [translates as:]

Every person as a citizen of a country has the opportunity to receive protection in improving his/her life, and he/she must understand his/her freedom in the economy, entertainment and customs, a thing that is very important in the good- ness and development of his/her life.

Controlling Freedoms

For ruling politicians and human rights activists in democratic Malawi, nostalgia for the one-party era was not an option. Instead, and despite major differences among themselves, they sought to dominate the public discourse by educating the populace on the concept of human rights. When she launched the Malawi Human Rights Youth Network in 2002, the presidential adviser on NGOs and civil society instructed her audience that “where one’s rights end is where another one’s rights begin. There is a tendency among the people to claim rights while impinging on other people’s rights.” Responsibility, udindo in Chichewa, came to complement the emphasis on rights as freedoms. …

… By establishing a discourse confined to rights as freedoms, activists, politicians, and other self-proclaimed experts made it extremely difficult to express and pursue alternatives to the current disempowerment of the majority. As a proposed limitation to excess freedom, the concept of responsibility failed to provide an alternative, because it made individuals the responsible partners. As in abstract legalism in general, solutions to

structural inequalities were thought to lie in the particular encounters of two or more aggrieved parties, preferably in a court of law. The solutions were, in brief, piecemeal, however profound and widespread the abuses.

Political history is a key context for the preoccupation with rights as freedoms. A tacit alliance between politicians and politically independent activists, as improbable as it was real, was a consequence of this history, centered on a public discourse on freedoms. The discourse was introduced to the general public through inaccurate translations, sometimes omitting those notions and provisions that could qualify the single-minded focus on freedoms. This process of disempowerment was, at least for most human rights activists, entirely unforeseen. Activists’ own interest in political and civil rights, understandable for historical reasons, was instrumental to the way in which freedoms came to dominate the public discourse, never quite qualified by the notion of responsibility.

… [A] further factor in the entrenchment of the new discourse [was] the thinly veiled patronizing approach that enabled self-proclaimed experts to discount popular responses to their interventions. … [D]espite their personal frustrations with politics and the economy, young people were usually the ones who spread this disempowering discourse through so-called civic education. … [An] important factor in the entrenchment of the new discourse [was] the avoidance of overtly political issues by those donor agencies that fund NGOs and programs of civic education.

The following materials explores cultural relativism from the perspective of Islam.241 An-Na’im argues that ‘human rights advocates in the Muslim world must work within the framework of Islam to be effective … [and] should struggle to have their interpretations of the relevant [Islamic] texts adopted as the new Islamic scriptural imperatives for the contemporary world.’ Those interpretations would be broadly consistent with the norms of international human rights. An-Na’im is then attentive to the relation between the international system and a given religious tradition, and to the possibility of reconciliation through reinterpretation of the tradition, rather than through identification of cross-cultural values among different systems that in some sense transcend or trump aspects of the religious tradition that defy or are otherwise inconsistent with them. Adnan Zulfiqar, in ‘Human Rights Norms from Below’, 48 Yale J. Int’l L. (2023) 55, at 102, develops the link between Merry’s approach and that of An-Na’im by suggesting that Islamic jurists use ‘Islamic law as a local vernacular and … indigenize human rights norms by giving them greater moral credibility with target societies.’

ABDULLAHI AHMED AN-NA’IM, HUMAN RIGHTS IN THE MUSLIM WORLD

3 HARV. HUM. RTS.

J. (1990) 13

Introduction

Historical formulations of Islamic religious law, commonly known as Shari’a, include a universal system of law and ethics and purport to regulate every aspect of public and private life. The power of Shari’a to regulate the behavior of Muslims derives from its moral and religious authority as well as the formal enforcement of its legal norms. As such, Shari’a influences individual and collective behavior in Muslim countries through its role in the socialization processes of such nations regardless of its status in their formal legal systems. For example, the status and rights of women in the Muslim world have always been significantly influenced by Shari’a, regardless of the degree of Islamization in public life. Of course, Shari’a is not the sole determinant of human behavior nor the only formative force behind social and political institutions in Muslim countries.

I conclude that human rights advocates in the Muslim world must work within the framework of Islam to be effective. They need not be confined, however, to the particular historical interpretations of Islam known as Shari’a. Muslims are obliged, as a matter of faith, to conduct their private and public affairs in accordance with

241 See generally A. M. Ibrahim, ‘A Not-So-Radical Approach to Human Rights in Islam’, 96 J. of Relig. (2016) 346; and M. Bak McKenna, ‘Feminism in Translation: Reframing Human Rights Law through Transnational Islamic Feminist Networks’, in R. Gould and K. Tahmasebian (eds.), The Routledge Handbook of Translation and Activism (2020) 317.

the dictates of Islam, but there is room for legitimate disagreement over the precise nature of these dictates in the modern context. Religious texts, like all other texts, are open to a variety of interpretations. Human rights advocates in the Muslim world should struggle to have their interpretations of the relevant texts adopted as the new Islamic scriptural imperatives for the contemporary world.

A. Cultural Legitimacy for Human Rights

The basic premise of my approach is that human rights violations reflect the lack or weakness of cultural legitimacy of international standards in a society. Insofar as these standards are perceived to be alien to or at variance with the values and institutions of a people, they are unlikely to elicit commitment or compliance. While cultural legitimacy may not be the sole or even primary determinant of compliance with human rights standards, it is, in my view, an extremely significant one. Thus, the underlying causes of any lack or weakness of legitimacy of human rights standards must be addressed in order to enhance the promotion and protection of human rights in that society.

… This cultural illegitimacy, it is argued, derives from the historical conditions surrounding the creation of the particular human rights instruments. Most African and Asian countries did not participate in the formulation of the Universal Declaration of Human Rights because, as victims of colonization, they were not members of the United Nations. When they did participate in the formulation of subsequent instruments, they did so on the basis of an established framework and philosophical assumptions adopted in their absence. For example, the pre-existing framework and assumptions favored individual civil and political rights over collective solidarity rights, such as a right to development, an outcome which remains problematic today. Some authors have gone so far as to argue that inherent differences exist between the Western notion of human rights as reflected in the international instruments and non-Western notions of human dignity. In the Muslim world, for instance, there are obvious conflicts between Shari’a and certain human rights, especially of women and non-Muslims.

… In this discussion, I focus on the principles of legal equality and nondiscrimination contained in many human rights instruments. These principles relating to gender and religion are particularly problematic in the Muslim world.

II. Islam, Shari’a and Human Rights

A.TheDevelopmentandCurrentApplicationofShari’a

To the over nine hundred million Muslims of the world, the Qur’an is the literal and final word of God and Muhammad is the final Prophet. During his mission, from 610 A.D. to his death in 632 A.D., the Prophet elaborated on the meaning of the Qur’an and supplemented its rulings through his statements and actions. This body of information came to be known as Sunna. He also established the first Islamic state in Medina around 622 A.D. which emerged later as the ideal model of an Islamic state. …

While the Qur’an was collected and recorded soon after the Prophet Muhammad’s death, it took almost two centuries to collect, verify, and record the Sunna. Because it remained an oral tradition for a long time during a period of exceptional turmoil in Muslim history, some Sunna reports are still controversial in terms of both their authenticity and relationship to the Qur’an.

Because Shari’a is derived from Sunna as well as the Qur’an, its development as a comprehensive legal and ethical system had to await the collection and authentication of Sunna. Shari’a was not developed until the second and third centuries of Islam. ...

Shari’a is not a formally enacted legal code. It consists of a vast body of jurisprudence in which individual jurists express their views on the meaning of the Qur’an and Sunna and the legal implications of those views. Although most Muslims believe Shari’a to be a single logical whole, there is significant diversity of opinion not only among the various schools of thought, but also among the different jurists of a particular school. …

Furthermore, Muslim jurists were primarily concerned with the formulation of principles of Shari’a in terms of moral duties sanctioned by religious consequences rather than with legal obligations and rights and specific temporal remedies. They categorized all fields of human activity as permissible or impermissible and recommended or reprehensible. In other words, Shari’a addresses the conscience of the individual Muslim, whether in a private, or public and official, capacity, and not the institutions and corporate entities of society and the state.

Whatever may have been the historical status of Shari’a as the legal system of Muslim countries, the scope of its application in the public domain has diminished significantly since the middle of the nineteenth century. Due to both internal factors and external influence, Shari’a principles had been replaced by European law governing commercial, criminal, and constitutional matters in almost all Muslim countries. Only family law and inheritance continued to be governed by Shari’a. …

Recently, many Muslims have challenged the gradual weakening of Shari’a as the basis for their formal legal systems. Most Muslim countries have experienced mounting demands for the immediate application of Shari’a as the sole, or at least primary, legal system of the land. These movements have either succeeded in gaining complete control, as in Iran, or achieved significant success in having aspects of Shari’a introduced into the legal system, as in Pakistan and the Sudan. Governments of Muslim countries generally find it difficult to resist these demands out of fear of being condemned by their own populations as anti-Islamic. Therefore, it is likely that this so-called Islamic fundamentalism will achieve further successes in other Muslim countries.

The possibility of further Islamization may convince more people of the urgency of understanding and discussing the relationship between Shari’a and human rights, because Shari’a would have a direct impact on a wider range of human rights issues if it became the formal legal system of any country. …

I believe that a modern version of Islamic law can and should be developed. Such a modern ‘Shari’a’ could be, in my view, entirely consistent with current standards of human rights. These views, however, are appreciated by only a tiny minority of contemporary Muslims. To the overwhelming majority of Muslims today, Shari’a is the sole valid interpretation of Islam, and as such ought to prevail over any human law or policy.

B.Shari’aandHumanRights

In this part, I illustrate with specific examples how Shari’a conflicts with international human rights standards.

The second example is the Shari’a law of apostasy. According to Shari’a, a Muslim who repudiates his faith in Islam, whether directly or indirectly, is guilty of a capital offense punishable by death. This aspect of Shari’a is in complete conflict with the fundamental human right of freedom of religion and conscience. The apostasy of a Muslim may be inferred by the court from the person’s views or actions deemed by the court to contravene the basic tenets of Islam and therefore be tantamount to apostasy, regardless of the accused’s personal belief that he or she is a Muslim.

The Shari’a law of apostasy can be used to restrict other human rights such as freedom of expression. A person may be liable to the death penalty for expressing views held by the authorities to contravene the official view of the tenets of Islam. Far from being an historical practice or a purely theoretical danger, this interpretation of the law of apostasy was applied in the Sudan as recently as 1985, when a Sudanese Muslim reformer was executed because the authorities deemed his views to be contrary to Islam.

A third and final example of conflict between Shari’a and human rights relates to the status and rights of nonMuslims. Shari’a classifies the subjects of an Islamic state in terms of their religious beliefs: Muslims, ahl al-Kitab or believers in a divinely revealed scripture (mainly Christian and Jews), and unbelievers. In modern terms, Muslims are the only full citizens of an Islamic state, enjoying all the rights and freedoms granted by Shari’a and subject only to the limitations and restrictions imposed on women. Ahl al-Kitab are entitled to the status of dhimma, a special compact with the Muslim state which guarantees them security of persons and property and a

degree of communal autonomy to practice their own religion and conduct their private affairs in accordance with their customs and laws. In exchange for these limited rights, dhimmis undertake to pay jizya or poll tax and submit to Muslim sovereignty and authority in all public affairs. …

According to this scheme, non-Muslim subjects of an Islamic state can aspire only to the status of dhimma, under which they would suffer serious violations of their human rights. Dhimmis are not entitled to equality with Muslims. [Economic and family law illustrations omitted.]

…

IV. A Case Study: The Islamic Dimension of the Status of Women …

The present focus on Muslim violations of the human rights of women does not mean that these are peculiar to the Muslim world. As a Muslim, however, I am particularly concerned with the situation in the Muslim world and wish to contribute to its improvement.

The following discussion is organized in terms of the status and rights of Muslim women in the private sphere, particularly within the family, and in public fora, in relation to access to work and participation in public affairs. This classification is recommended for the Muslim context because the personal law aspects of Shari’a, family law and inheritance, have been applied much more consistently than the public law doctrines.242 The status and rights of women in private life have always been significantly influenced by Shari’a regardless of the extent of Islamization of the public debate.

A.Shari’aandtheHumanRightsofWomen

… The most important general principle of Shari’a influencing the status and rights of women is the notion of qawama Qawama has its origin in verse 4:34 of the Qur’an: ‘Men have qawama [guardianship and authority] over women because of the advantage they [men] have over them [women] and because they [men] spend their property in supporting them [women]’. According to Shari’a interpretations of this verse, men as a group are the guardians of and superior to women as a group, and the men of a particular family are the guardians of and superior to the women of that family.

… For example, Shari’a provides that women are disqualified from holding general public office, which involves the exercise of authority over men, because, in keeping with the verse 4:34 of the Qur’an, men are entitled to exercise authority over women and not the reverse.

Another general principle of Shari’a that has broad implications for the status and rights of Muslim women is the notion of al-hijab, the veil. This means more than requiring women to cover their bodies and faces in public. According to Shari’a interpretations of verses 24:31, 33:33,243 33:53, and 33:59244 of the Qur’an, women are supposed to stay at home and not leave it except when required to by urgent necessity. When they are permitted to venture beyond the home, they must do so with their bodies and faces covered. Al-hijab tends to reinforce women’s inability to hold public office and restricts their access to public life. They are not supposed to participate in public life, because they must not mix with men even in public places.

… In family law for example, men have the right to marry up to four wives and the power to exercise complete control over them during marriage, to the extent of punishing them for disobedience if the men deem that to be necessary.245 In contrast, the co-wives are supposed to submit to their husband’s will and endure his

242 The private/public dichotomy, however, is an artificial distinction. The two spheres of life overlap and interact. The socialization and treatment of both men and women at home affect their role in public life and vice versa. While this classification can be used for analysis in the Muslim context, its limitations should be noted. It is advisable to look for both the private and public dimensions of a given Shari’a principle or rule rather than assume that it has only private or public implications.

243 [O Consorts of the Prophet … .] And stay quietly in your houses, and make not a dazzling display, like that of the former Times of Ignorance; and establish regular prayer, and give regular charity; and obey God and His Apostle. And God only wishes to remove all abomination from you, ye Members of the Family, and to make you pure and spotless.

244 O Prophet! Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested. And God is Oft-Forgiving, Most Merciful.

245 Polygamy is based on verse 4:3 of the Qur’an. The husband’s power to chastise his wife to the extent of beating her is based on verse 4:34 of the Qur’an.

punishments. While a husband is entitled to divorce any of his wives at will, a wife is not entitled to a divorce, except by judicial order on very specific and limited grounds. Another private law feature of discrimination is found in the law of inheritance, where the general rule is that women are entitled to half the share of men.

In addition to their general inferiority under the principle of qawama and lack of access to public life as a consequence of the notion of al-hijab, women are subjected to further specific limitations in the public domain. For instance, in the administration of justice, Shari’a holds women to be incompetent witnesses in serious criminal cases, regardless of their individual character and knowledge of the facts. In civil cases where a woman’s testimony is accepted, it takes two women to make a single witness. Diya, monetary compensation to be paid to victims of violent crimes or to their surviving kin, is less for female victims than it is for male victims.

… These overlapping and interacting principles and rules play an extremely significant role in the socialization of both women and men. Notions of women’s inferiority are deeply embedded in the character and attitudes of both women and men from early childhood.

C.MuslimWomeninPublicLife

A similar and perhaps more drastic conflict exists between reformist and conservative trends in relation to the status and rights of women in the public domain. Unlike personal law matters, where Shari’a was never displaced by secular law, in most Muslim countries, constitutional, criminal, and other public law matters have come to be based on secular, mainly Western, legal concepts and institutions. Consequently, the struggle over Islamization of public law has been concerned with the re-establishment of Shari’a where it has been absent for decades, or at least since the creation of the modern Muslim nation states in the first half of the twentieth century. In terms of women’s rights, the struggle shall determine whether women can keep the degree of equality and rights in public life they have achieved under secular constitutions and laws.

… Educated women and other modernist segments of society may not be able to articulate their vision of an Islamic state in terms of Shari’a, because aspects of Shari’a are incompatible with certain concepts and institutions which these groups take for granted, including the protection of all human rights. To the extent that efforts for the protection and promotion of human rights in the Muslim world must take into account the Islamic dimension of the political and sociological situation in Muslim countries, a modernist conception of Islam is needed.

V. Islamic Reform and Human Rights

Islamic reform needs must be based on the Qur’an and Sunna, the primary sources of Islam. Although Muslims believe that the Qur’an is the literal and final word of God, and Sunna are the traditions of his final Prophet, they also appreciate that these sources have to be understood and applied through human interpretation and action. …

A.AnAdequateReformMethodology

… The basic premise of my position, based on the work of the late Sudanese Muslim reformer Ustadh Mahmoud Mohamed Taha, is that the Shari’a reflects a historically-conditioned interpretation of Islamic scriptures in the sense that the founding jurists had to understand those sources in accordance with their own social, economic, and political circumstances. In relation to the status and rights of women, for example, equality between men and women in the eighth and ninth centuries in the Middle East, or anywhere else at the time, would have been inconceivable and impracticable. It was therefore natural and indeed inevitable that Muslim jurists would understand the relevant texts of the Qur’an and Sunna as confirming rather than repudiating the realities of the day.

In interpreting the primary sources of Islam in their historical context, the founding jurists of Shari’a tended not only to understand the Qur’an and Sunna as confirming existing social attitudes and institutions, but also

to emphasize certain texts and ‘enact’ them into Shari’a while de-emphasizing other texts or interpreting them in ways consistent with what they believed to be the intent and purpose of the sources. Working with the same primary sources, modern Muslim jurists might shift emphasis from one class of texts to the other, and interpret the previously enacted texts in ways consistent with a new understanding of what is believed to be the intent and purpose of the sources. This new understanding would be informed by contemporary social, economic, and political circumstances in the same way that the ‘old’ understanding on which Shari’a jurists acted was informed by the then prevailing circumstances. The new understanding would qualify for Islamic legitimacy, in my view, if it is based on specific texts in opposing the application of other texts, and can be shown to be in accordance with the Qur’an and Sunna as a whole.

For example, the general principle of qawama, the guardianship and authority of men over women under Shari’a, is based on verse 4:34 of the Qur’an.

… This verse presents qawama as a consequence of two conditions: men’s advantage over and financial support of women. The fact that men are generally physically stronger than most women is not relevant in modern times where the rule of law prevails over physical might. Moreover, modern circumstances are making the economic independence of women from men more readily realized and appreciated. In other words, neither of the conditions advantages of physical might or earning power set by verse 4:34 as the justification for the qawama of men over women is tenable today.

The fundamental position of the modern human rights movement is that all human beings are equal in worth and dignity, regardless of gender, religion, or race. This position can be substantiated by the Qur’an and other Islamic sources as understood under the radically transformed circumstances of today. For example, in numerous verses the Qur’an speaks of honor and dignity for ‘humankind’ and ‘children of Adam’, without distinction as to race, color, gender, or religion. By drawing on those sources and being willing to set aside archaic and dated interpretations of other sources, such as the one previously given to verse 4:34 of the Qur’an, we can provide Islamic legitimacy for the full range of human rights for women.

Similarly, numerous verses of the Qur’an provide for freedom of choice and non-compulsion in religious belief and conscience.246 These verses have been either de-emphasized as having been ‘overruled’ by other verses which were understood to legitimize coercion, or ‘interpreted’ in ways which permitted such coercion. For example, verse 9:29 of the Qur’an was taken as the foundation of the whole system of dhimma, and its consequent discrimination against non-Muslims. Relying on those verses which extoll freedom of religion rather than those that legitimize religious coercion, one can argue now that the dhimma system should no longer be part of Islamic law and that complete equality should be assured regardless of religion or belief. The same argument can be used to abolish all negative legal consequences of apostasy as inconsistent with the Islamic principle of freedom of religion. [Discussion omitted of mechanisms and methods within Islam for development and reform.]

… The ultimate test of legitimacy and efficacy is, of course, acceptance and implementation by Muslims throughout the world.

B.ProspectsforAcceptanceandLikelyImpactoftheProposedReform…

… Governments of Muslim countries, like many other governments, formally subscribe to international human rights instruments because, in my view, they find the human rights idea an important legitimizing force both at home and abroad … .

Nevertheless, the proposed reform will probably be resisted because it challenges the vested interests of powerful forces in the Muslim world and may upset male-dominated traditional political and social institutions. These forces probably will try to restrict opportunities for a genuine consideration of this reform methodology.

246 See, for example, verse 2:256 of the Qur’an which provides: ‘Let there be no compulsion in religion: Truth stands out clear from error … .’ In verse 18:29 God instructs the Prophet: ‘Say, the Truth is from your Lord. Let him who will, believe, and let him who will, reject [it]’.

Consequently, the acceptance and implementation of this reform methodology will involve a political struggle within Muslim nations as part of a larger general struggle for human rights. I would recommend this proposal to participants in that struggle who champion the cause of justice and equality for women and non-Muslims, and freedom of belief and expression in the Muslim world. Given the extreme importance of Islamic legitimacy in Muslim societies, I urge human rights advocates to claim the Islamic platform and not concede it to the traditionalist and fundamentalist forces in their societies. I would also invite outside supporters of Muslim human rights advocates to express their support with due sensitivity and genuine concern for Islamic legitimacy in the Muslim world.

In a recent comment, Mohammad Fadel, in ‘Muslim Modernism, Islamic Law, and the Universality of Human Rights’, 36 Emory Int’l L. Rev. (2022) 713 characterizes An-Na’im’s work:

… as an attempt to reconcile one’s specific commitments … arising out of being a Sudanese, African-Arab Sunni male-with the universal commitments arising out of being a member of humanity. At different times, An-Na’im offered various strategies to accomplish this reconciliation. One strategy was to propose a radical inversion of those elements of Quranic and Islamic teachings that Muslims should deem universally authoritative … . [Another took] an institutional perspective: a secular state, committed to religious neutrality, could create the political space within which individual Muslims could work out freely for themselves different ways to reconcile their particular commitments with universal ones.

… [His] call for a cross-cultural approach to human rights remains salient more than a quarter century after he first articulated it. Muslims, in particular, find their human rights threatened by both non-Muslim states, whether authoritarian (e.g., China) or militantly secular/democratic (e.g., France), and authoritarian Muslim-majority states (e.g., Egypt). Despite the disparate political and economic systems of these different regimes, they are united by a profound hostility to assertions made by Muslims of rights that others take for granted; such hostility rests on the claim that by exercising their rights in a manner inconsistent with the state’s wishes, Muslims are acting in a manner contrary to the public order. Some of this hostility could be mitigated by a clearer articulation of Islamic legal principles and their presentation in a language that does not make them seem incommensurate with the rules of international human rights law. …

Abdullahi Ahmed An-Naim subsequently elaborated on his overall approach in Decolonizing Human Rights (2021) 123:

In conclusion, [my] core propositions … can be summarized as follows. Any expectation of legal enforcement of universal human rights (not just those that happen to be protected under domestic law as the civil rights of citizens) by any nation-state is a ruthless mirage. Any outcome that can be expected of the legal protection of human rights by the state is unsustainable in practice unless it is accepted and internalized as an indigenous norm by the people concerned. Conversely, any human rights norms that are accepted and internalized by people in their communities will be predominantly upheld in their own daily practice, and states can enjoy the voluntary cooperation of their populations when enforcing the right in exceptional cases of violation. This is already happening for many human rights norms in the daily practice of communities everywhere, but the current international advocacy regime is exclusively focused on violations because the survival of the current system of institutionalized monitors is totally dependent on the existence of violations, not the reality of compliance.

The paradigm shift and strategy I am calling for is to focus on making compliance with human rights the constant daily norm in our interpersonal and intracommunal relations, the socialization of our children, and the organization of our social institutions. There is simply no alternative to reliance on habitual conformity if we are to have the human and

material resources and political will to enforce human rights norms in the rare and exceptional instances of their violation. This strategy may sound difficult or timeconsuming, but it is in fact the fastest, most effective, and most sustainable way of protecting human rights as the rights of every human being, everywhere, all the time. Whoever seeks to protect any human right among any people should immediately begin to work within that community to promote that norm through cultural transformation and political mobilization. That is how norms that can produce the spontaneous practice of gender equality and religious pluralism can be entrenched and expanded.

Comments on Cultural Relativism

Consider the following observations:

Rosalyn Higgins, Problems and Process: International Law and How We Use It (1994), at 96:

It is sometimes suggested that there can be no fully universal concept of human rights, for it is necessary to take into account the diverse cultures and political systems of the world. In my view this is a point advanced mostly by states, and by liberal scholars anxious not to impose the Western view of things on others. It is rarely advanced by the oppressed, who are only too anxious to benefit from perceived universal standards. The non-universal, relativist view of human rights is in fact a very state-centred view and loses sight of the fact that human rights are human rights and not dependent on the fact that states, or groupings of states, may behave differently from each other so far as their politics, economic policy, and culture are concerned. I believe, profoundly, in the universality of the human spirit. Individuals everywhere want the same essential things: to have sufficient food and shelter; to be able to speak freely; to practise their own religion or to abstain from religious belief; to feel that their person is not threatened by the state; to know that they will not be tortured, or detained without charge, and that, if charged, they will have a fair trial. I believe there is nothing in these aspirations that is dependent upon culture, or religion, or stage of development. They are as keenly felt by the African tribesman as by the European city-dweller, by the inhabitant of a Latin American shantytown as by the resident of a Manhattan apartment.

Louise Arbour, UN High Commissioner for Human Rights, Statement to the UN Commission on Human Rights (14 March 2005):

I am … concerned that we have unduly embroiled our normative discourse in unnecessary clashes of vision, creating competing images, each incomplete and ineffective without the addition of the other. Are human rights universal or culturally specific? Are they collectively or individually held? Should we promote them, or protect them? Which is the more effective: technical cooperation or naming and shaming; country analysis or thematic debates? Which comes first: peace or justice; economic, social and cultural rights, or civil and political rights; development or democracy?

Such questions serve, in practice, as little more than a series of diversions to the real task in hand. They become the theoretical playground within which we demonstrate our irrelevance and justify our inaction, whether than inaction is borne of indifference, shrewd calculation, or despair.

Judge Bonello, Concurring Opinion in Al-Skeini v. United Kingdom (European Court of Human Rights, Grand Chamber, Application No. 55721/07 (7 July 2011)), which concerned the issue of whether UK obligations under the European Convention on Human Rights applied to certain actions of its troops in Iraq:

37. I confess to be quite unimpressed by the pleadings of the United Kingdom Government to the effect that exporting the European Convention on Human Rights to Iraq would have amounted to “human rights imperialism”. It ill behoves a State that

imposed its military imperialism over another sovereign State without the frailest imprimatur from the international community, to resent the charge of having exported human rights imperialism to the vanquished enemy. It is like wearing with conceit your badge of international law banditry, but then recoiling in shock at being suspected of human rights promotion.

38. Personally, I would have respected better these virginal blushes of some statesmen had they worn them the other way round. Being bountiful with military imperialism but bashful of the stigma of human rights imperialism, sounds to me like not resisting sufficiently the urge to frequent the lower neighbourhoods of political inconstancy. For my part, I believe that those who export war ought to see to the parallel export of guarantees against the atrocities of war. And then, if necessary, bear with some fortitude the opprobrium of being labelled human rights imperialists.

QUESTIONS

1. What are the advantages and risks of understanding human rights promotion as a process of vernacularization?

2. An-Na’im suggests an approach to the questions of how to understand divergences among cultures with respect to human rights issues and how to go about finding common ground. How would you describe that approach? Exogenous, endogenous, or some mix? Does it appear helpful in resolving contemporary disputes over, say, gender discrimination or capital punishment? Do Merry’s observations about culture and modes of cultural change support or call into question An-Na’im’s project?

B. DISSONANCE AND CONFLICT: ILLUSTRATIONS

Against the background of Chapters 6 and 7(A), with their examination of rights discourse and presentation of different perspectives on universalism and cultural relativism, this Part explores four human rights issues now in contention and active debate among and within countries.

In the illustrations below, two different phenomena become central to the debate: (1) The asserted universal norm itself may be challenged, perhaps on the ground that it lacks universal validity, or that it conflicts with ultimate religious commands, or that it violates long-standing tradition that assures cultural integrity and survival. This chapter’s illustrations contain examples of these kinds of arguments to further develop the theme of cultural relativism. (2) The second phenomenon involves a conflict among different rights that are each recognized to some extent in the leading human rights instruments. The dispute is sometimes related to cultural relativism and sometimes distinct, but is formally internal to the human rights corpus. What, for example, are the respective boundaries of rights that in given contexts squarely conflict with each other? Freedom of religious belief and practice may conflict with non-discrimination norms; freedom of speech may conflict with the protection of minority groups. As materials in Chapter 6(A) made clear, such types of conflict are endemic to rights discourse, as they are to law in general.

Several of the following illustrations concern family, gender and religion interrelated topics that have characterized much discussion of the last decade about cultural relativism and that often involve conflicting rights. Thus the studies examine gender and family in relation to a state’s or ethnic group’s internal custom, or in relation to religion.

The problems discussed in this chapter have become acute within many developing countries. In recent decades, such countries experienced strong external and internal pressures to rethink and revise, sometimes radically,

their traditional beliefs and practices. The relentless assault of the developed world on other cultures, the penetration of those cultures by trade, investment, high-tech media and tourism, as well as the universalization of ideas and values like human rights, have launched transformative processes that are often referred to under the broad rubric of globalization. The challenge to a state or region’s traditional ways and to other state practices that depart from the universal human rights instruments increasingly comes from internal groups as well as from international advocates and organizations. The upheavals in Arab countries following the Arab Spring provide but one striking illustration in that regard. Women played an important part in the demonstrations that brought down the Mubarak government, but it has been estimated that 90 percent of married women in Egypt have been subjected to female genital mutilation. Virginity tests were applied to women arrested in the prodemocracy demonstrations, and the Egyptian Criminal Code (Section 60) states that ‘no punitive damages can be obtained if the woman has been beaten by her husband with good intentions’. In 2019, the Grand Imam of al-Azhar, the highest religious law authority in Egypt ruled that ‘beating a woman is permitted, but is not obligatory. It is permitted in order to confront the rebellious woman and to break her arrogance and in order to protect the family from loss and dissolution.’

1. Gender

The potential for conflict in a large number of states between the objectives of human rights treaties, on the one hand, and customary laws and practices as well as religious beliefs on the other, is a highly contested terrain. Gender-related issues are prominent here, as many traditional norms and much local custom that retain power and influence today impose different roles and duties on men and women. To some extent, such problems stem from the increasing power and prominence in recent years of fundamentalist religious groups, many of which actively oppose the transformative impetus of human rights with respect to traditional gender roles.

Customary laws and practices may conflict with prohibitions in the text of the ICCPR and CEDAW or in action taken by the relevant treaty bodies. Recall Articles 2(f) and 5(a) of CEDAW that require states to take all appropriate measures to modify or abolish customs, practices and social and cultural patterns of conduct that constitute discrimination or that are based on the idea of inferiority or on stereotyped roles for women.

Writing almost three decades ago, Tracy Higgins, in ‘Anti-Essentialism, Relativism, and Human Rights’, 19 Harvard Women’s L. J. (1996) 89, concluded that:

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women’s freedom in the name of an autonomy that exists for women in theory only.

The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness. Yet to forge an alternative path is difficult, requiring feminists to confront the risks inherent in global strategies for change.

Building upon women’s shared experiences inevitably entails a risk of misdescription, or worse, cooptation but contains the promise of transforming and radicalizing women’s understanding of their own condition. Emphasizing difference threatens to splinter women politically, undermining hard-won progress, but may simultaneously uncover new possibilities for re-creating gender relations. Forging a combined strategy that respects both commonality and difference requires feminists to acknowledge that we cannot eliminate the risk of coercion altogether, but the risk of inaction is also ever present.

This section begins with two readings that consider the complexity of developing feminist perspectives on human rights related to gender, problems that bear on the following case studies. It then explores a practice

that is variously referred to, with strikingly different political and moral innuendo and sometimes agendas, as female circumcision, female genital cutting, or female genital mutilation.

SINDISO MNISI AND ANINKA CLAASSENS, RURAL WOMEN REDEFINING LAND RIGHTS IN THE CONTEXT OF LIVING CUSTOMARY LAW

25 S. AF. J. HUM. RTS. 9 (2009) 491

I Introduction

Women’s rights activists and lawyers in Africa have tended to treat the customary arena as inherently dangerous to women’s interests, pointing to the frequency and regularity with which the discourse of the customary is used to disempower women and bolster patriarchal interests. Anne Whitehead and Dzodzi Tsikata conclude that there are ‘simply too many examples of women losing out when modern African men talk of custom’. In this context, strategies to secure women’s land rights in Africa have tended to avoid the customary law arena in favour of formal legal initiatives such as the registration of joint land titles for both spouses.

However, these legal strategies have also proven to be problematic. Titling programmes are often captured by elites and used to entrench the position of those with formal rights (mostly men) at the expense of overlapping ‘secondary’ entitlements vesting in women, especially unmarried women. Further, strategies that focus on attaining individual ownership for women have been criticised as relevant only to small numbers of middle class women and for failing to articulate with the concerns of women whose survival is embedded within a web of reciprocal family and community relationships, for whom the protection and preservation of the land rights vesting in the family or group may be a priority. Furthermore, legal strategies that focus exclusively on the creation of a ‘formal’ statutory property regime separate from the customary arena fail to come to grips with the fact that in South Africa many of the most serious land-related problems facing women exist at the interface between distorted custom and past colonial and apartheid statute law. Customary entitlements to land vesting in women are rendered invisible to the formal legal system even in instances where women continue to use and occupy the land in question. For many women living in rural areas, the only means of countering threatened evictions lies in asserting use and occupation rights derived from customary entitlements that are at odds with overlaid ‘formal’ legal rights held by men. Legal strategies that seek to avoid the customary arena may unwittingly remove the ground from under the feet of those women for whom customary entitlements are the best or only basis on which to assert or prove land rights. Moreover, they ignore the fact that the women concerned are entitled to have their rights recognised through a system of law that the Constitution recognises as legitimate, and to demand that they have a say in how this system of law develops.

To outline the shortcomings of statutory reforms that focus on providing land titles as the ‘solution’ is not to deny that the discourse of the customary is fraught with serious dangers for women. …

…

II Challenging the Assumptions Underlying the ‘Rights’ and ‘Custom’ Dichotomy

The popular discourse counter-posing rights and culture is mirrored by an academic discourse that contrasts ‘universalism’ and ‘cultural relativism’. The two poles of universalism and cultural relativism have been debunked as false opposites which obscure more than they clarify … .

…

International political agendas coincide with these debates. At one extreme, liberal human rights agendas are used to justify invasion of other countries. At the other is the practice of countries refusing to endorse equality provisions on the basis that they conflict with local custom or group identity which must be protected from ‘western influence’. …

[Based on relevant] studies, several critiques are particularly pertinent to our discussion of women’s land rights and customary law. First, the bounded group identities and closed ‘cultures’ posited by the cultural relativists have been subject to recurrent challenge. This characterisation of culture leads to essentialism and belies the ongoing processes of contestation, change and adaptation that occur within and between cultures. It ignores the fact that there are no longer (if ever there were) bounded cultures circumscribing people’s life experience.

Cultural relativists tend to privilege static versions of custom that deny competing, internal constructs advanced by marginalised groups who often employ rights claims in their struggles for change.

Universalists, on the other hand, are critiqued for essentialising the content of human rights. The content of rights has been shown to be variable and subject to constant re-negotiation at all levels of society, including within the jurisprudence of different countries and international instruments. Once the content of rights is recognised as the outcome of context-specific processes, claims of universalism need to be tempered by the recognition of the context- specific processes in which rights are claimed, negotiated, adjudicated, developed and re-defined.

Perhaps the most pragmatic criticism of both universalism and relativism is couched in legal pluralism. The argument here is that both sides fail to take into account the plural legal contexts in which people invoke rights claims (whether to individual or cultural rights) in most societies, and in post-colonial and post-socialist societies in particular. In the context of overlapping international instruments, state law, informal local law and customary regimes, people tend to ‘mix and match’, drawing on whichever authority, law or ‘right’ best advances their specific interests in those instances. Implicit in the pluralist position is that claims are forged at the interface between overlapping systems of law and custom which combine the ‘imported’ and the local, the formal and the informal. Hence, nowhere can ‘rights’ or custom be said to exist or operate in isolation from the other.

…

DIANNE OTTO, FEMINIST APPROACHES TO INTERNATIONAL LAW ANNE ORFORD AND FLORIAN HOFFMANN (EDS.), THE OXFORD HANDBOOK OF THE THEORY OF INTERNATIONAL LAW (2016) 488

…

2. Visions

… [F]or many feminists, the vision of women’s inclusion and equality in the existing social and legal order is inadequate. Their ambitions are more transformative, seeking to challenge the masculinist ways of thinking that are embedded in the underlying templates that determine what equality and inclusion look like, discursively and in practice. … A well-worn method of representing [feminism’s multiple genealogies] is to identify various genres of feminist legal scholarship, in terms of their philosophical and political commitments. In international law, these taxonomies usually adopt ‘liberal’ feminism as their starting point, moving on to describe other genres generationally as, in various ways, responses to the limitations of liberalism like: ‘radical’ and ‘cultural’ feminisms which focus on women’s subordination (rather than inequality) as the foundational site of oppression; ‘Marxist’ and ‘socialist’ feminisms which centre attention on the exploitation of women’s economic and reproductive labour; ‘critical race’ and ‘postcolonial’ feminisms which position sex/gender as one of multiple intersecting axes of oppression in the larger context of imperial power; and ‘post-structural’ and ‘queer’ feminisms which understand the identities and practices associated with gender and sexuality as fluid and multiple, rather than naturally determined and dualistic.

Elements from several of these approaches are likely to be found in most feminist projects in international law; although there is no doubt that radical feminist ideas have been very influential in recent years. This influence has focused attention on women’s sexual subordination and victimhood, making many feminists uncomfortable because it has had the paradoxical effect of granting new legitimacy to long-standing protective gender tropes, rather than challenging them. While identifying the dominant strand(s) informing any particular feminist intervention is empowering and critical knowledge, it is often more useful to think of feminist ideas in international law as operating as a network, aspects of which are drawn upon depending on politics, history, context, strategy, and goals, rather than as parallel sets of ideas that function in isolation from or opposition to each other although they can do this as well, and sometimes with paralyzing effects, as with opposing feminist views about whether prostitution should be regulated as work or criminalized as violence against women. While such internal feminist debates foster the critical self-reflection that is part of the life-blood of feminism, it is important to work against the stasis that understanding feminism in terms of competing strands installs. It is more useful, and apt, to think of feminist approaches to international law as a shifting and contested network of ideas and allegiances that, in seeking to make sex/ gender a central analytical category, draw on multiple and sometimes competing feminist perspectives and engage with other critical traditions in law. …

My search for more detail about the feminist visions of the future feminist utopias, if you like that have informed feminists’ engagements with international law has not been very fruitful. While the starting point is usually the desire to change women’s disadvantaged position vis-à-vis men around the world, there are many ways that a feminist might go about promoting such change … . For some, the project is to realize the liberal humanist promises of universality and equality, while for others it is to struggle against neoliberal economic globalization and its deeply gendered inequitable effects. For some, the primary subject of feminist analysis is women, while for others the feminist subject includes women, men, and all other sex/gender identities, and for yet others she is an intersectionally constituted subject located in her specific history, especially her colonial history, and the many other vectors of disadvantage that have an influence on her situation, such as race, caste, indigeneity, sexuality, and economic status. However, even this does not exhaust the possible subjects of feminism, as gender is also an analytical system that attributes value to objects and ideas that have little or no relationship at all with sexed bodies and identities. In this approach, the subject of feminism is the entire discursive framework of international law, and the task is to reveal its reliance on gendered signs to order ways of thinking that legitimate and normalize an inequitable world order and then to radically reconstruct its entire conceptual framework. …

… In what ways sex/gender would matter in a reimagined feminist world is an open question. …

Female Genital Mutilation/Cutting (FGM/C)

Since the late 1970s, when an American feminist, Fran P. Hosken, published The Hosken Report: Genital and Sexual Mutilation of Females, and began the process of replacing discussions of female circumcision with an uncompromising condemnation of female genital mutilation, efforts to eliminate this practice have been surrounded by controversy. In 1983, for example, the Association of African Women for Research and Development endorsed a fight against FGM, but roundly criticized the ‘crusade of the West’ that derived from ‘the moral and cultural prejudices of Judeo-Christian Western society’. ‘[T]he new crusaders have fallen back on sensationalism, and have become insensitive to the dignity of the very women they want to ‘save’. They are totally unconscious of the latent racism which such a campaign evokes in countries where ethnocentric prejudice is so deep-rooted.’247

In 2012, Nigerian-American writer Teju Cole raised a similar critique in response to the efforts of Invisible Children, an American NGO, to mobilize outrage at human rights violations committed by Joseph Kony’s Lord’s Resistance Army in Uganda. In a series of tweets that went viral, he observed that: ‘… the fastest growth industry in the US is the White Savior Industrial Complex’; and that ‘[t]he white savior supports brutal policies in the morning, founds charities in the afternoon, and receives awards in the evening’.248

FGM/C first emerged on the UN agenda in 1983, when the Sub-Commission on the Prevention of Discrimination and Protection of Minorities called for a study. In the same year the Sub-Commission set up a Working Group, including participants from UNICEF, UNESCO, and WHO, to study ‘traditional practices affecting the health of women and children’. In 1990, the Commission on Human Rights appointed a Special Rapporteur on traditional practices. Her final report was submitted only in 2005.249 In 1997, WHO, UNICEF, and the United Nations Population Fund (UNFPA) adopted a policy opposing FGM. The 2024 version of WHO’s policy (below) identifies four types of FGM, and this typology is now widely used around the world. The OHCHR has expressed concern that efforts to eliminate FGM have led to a major increase in instances of ‘cross-border and transnational’ FGM (UN Doc. A/HRC/56/29 (2024).

UN human rights treaty bodies, and notably the Special Rapporteur on violence against women, have also taken a strong stand against FGM, as illustrated below in the report by the CEDAW Committee. For its part, the UN

247 M. Davies (ed.), Third World-Second Sex: Women’s Struggles and National Liberation (1983), at 217.

248 See T. Cole, ‘The White-Savior Industrial Complex’, The Atlantic (21 March 2012).

249 See generally, J. Pace, The United Nations Commission on Human Rights: ‘A Very Great Enterprise’ (2020) 205-9; and R. Khosla et al., ‘Gender Equality and Human Rights Approaches to Female Genital Mutilation: A Review of International Human Rights Norms and Standards,’ 14 Reprod. Health (2017) 59.

Human Rights Council first condemned the practice in 2013. In its Resolution 44/16 (2020), entitled ‘Elimination of female genital mutilation’, the Council:

2. Urges States to condemn all harmful practices that affect women and girls, in particular protect women and girls from this form of violence;

3. Also urges States to ensure the protection of and provision of support to women and girls subjected to, or at risk of, female genital mutilation and to address the underlying systemic and structural causes in which the harmful practice is rooted …;

4. Further urges States to ensure that national action plans and strategies on the prevention and elimination of female genital mutilation are adequately resourced and include projected timelines for goals and incorporate clear targets and indicators … ;

5. Encourages States to put in place national coordination mechanisms to prevent and eliminate female genital mutilation …;

WORLD HEALTH ORGANIZATION, FEMALE GENITAL MUTILATION − FACT SHEET, 5 FEBRUARY 2024

Female genital mutilation (FGM) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. The practice has no health benefits for girls and women and cause severe bleeding and problems urinating, and later cysts, infections, as well as complications in childbirth and increased risk of newborn deaths.

The practice of FGM is recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes and constitutes an extreme form of discrimination against girls and women. It is nearly always carried out by traditional practitioners on minors and is a violation of the rights of children. The practice also violates a person's rights to health, security and physical integrity; the right to be free from torture and cruel, inhuman or degrading treatment; and the right to life, in instances when the procedure results in death. In several settings, there is evidence suggesting greater involvement of health care providers in performing FGM due to the belief that the procedure is safer when medicalized. WHO strongly urges health care providers not to perform FGM and has developed a global strategy and specific materials to support health care providers against medicalization.

Types of FGM

Female genital mutilation is classified into 4 major types.

Type 1: … the partial or total removal of the clitoral glans …, and/or the prepuce/ clitoral hood … .

Type 2: … the partial or total removal of the clitoral glans and the labia minora …, with or without removal of the labia majora … .

Type 3: …infibulation … the narrowing of the vaginal opening through the creation of a covering seal. …

Type 4: … all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.

No health benefits, only harm

FGM has no health benefits, and it harms girls and women in many ways. It involves removing and damaging healthy and normal female genital tissue, and it interferes with the natural functions of girls' and women's bodies.

Immediate complications can include: [severe pain; excessive bleeding (haemorrhage); genital tissue swelling; fever; infections, e.g. tetanus; urinary problems; wound healing problems; injury to surrounding genital tissue; shock; death].

Long-term complications can include: [urinary, vaginal, menstrual, and sexual problems; increased risk of childbirth complications and newborn deaths; need for later surgeries; psychological problems (depression, anxiety, post-traumatic stress disorder, low self-esteem, etc.)].

Who is at risk?

FGM is mostly carried out on young girls between infancy and adolescence, and occasionally on adult women. According to available data from 30 countries where FGM is practiced in the western, eastern, and north-eastern regions of Africa, and some countries in the Middle East and Asia, more than 200 million girls and women alive today have been subjected to the practice with more than 3 million girls estimated to be at risk of FGM annually. FGM is therefore of global concern.

INQUIRY

CONCERNING MALI UNDER ARTICLE 8 OF THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN UN DOC. CEDAW/C/IR/MLI/1 (24 DECEMBER

2019)

[The ‘sources’ that requested the Committee to undertake an inquiry alleged that FGM was widespread in Mali. After the State Party consented to the inquiry, three members of the Committee visited Mali for 12 days in December 2018. That year, Mali was ranked 182nd out of 189 countries on the Human Development Index, had a literacy rate of 24.6 percent for women, compared with 44.8 percent for men. The country was also ‘characterized by an upsurge in gender-based violence against women, low representation and participation of women in decision-making forums, and the absence of women from the peace process and the process of national reconciliation’.

In 2015 the prevalence of FGM stood ‘at 82.7 per cent among women aged from 15 to 49 years and 76.4 per cent among girls aged from 0 to 14 years. …The prevalence among girls was the highest in West Africa in 2017 and exceeded the subregional average of 25.4 per cent.’ While there was considerable variation among ethnic groups and religions, there was little difference according to urban/rural location or socioeconomic status. The breakdown according to WHO’s typology was: Type II: 48.9 percent of women aged from 15 to 49 years; Type IV, 14.6 percent; and Type III, 10.6 percent. 73 percent of women were subjected to genital mutilation in early childhood and only 0.4 percent at the age of 15 years or over.]

…

2. Sociocultural context and gender stereotyping

21. In the State party, 71 per cent of women and 66 per cent of men aged from 15 to 49 years state that female genital mutilation is a practice required by religion. Religious leaders, during a debate on the subject of female genital mutilation in Mopti in 2010, condemned the most severe forms of excision and affirmed their willingness to debate the issue further with stakeholders. [The government and] the National Human Rights Commission, however, emphasized the socioeconomic nature of the practice. Nonetheless, the Committee notes the persistence among religious leaders of a tendency to defend female genital mutilation and assert the mandatory nature of the practice. It also notes that the lack of knowledge of religious texts has an impact on the belief in a link between the practice and religion.

22. In Mopti, religious leaders said that female genital mutilation was a way of controlling women’s sexual activity. [Some] said that a girl who had not undergone genital mutilation was seen as bringing shame on the family, and there is a belief in some quarters that having sexual relations with a woman who has not undergone genital mutilation causes impotence in the man.

23. One victim … explained that, once she had undergone genital mutilation, her family had welcomed her as a “woman”. [Some] religious leaders … said that genital mutilation was necessary in order to purify a woman in preparation for marriage. [An NGO] confirmed that families feared that their daughters would not find a husband if they had not undergone genital mutilation.

25. … [T]he head of the extended family, usually a man, was the one who decided whether the girls were to be subjected to genital mutilation, highlighting the fact that his authority took precedence over that of the parents, who generally went along with the decision.

[The Committee concluded that the State party had made many efforts to prevent FGM, including implementing policies and programmes and establishing structures and bodies focused on prevention and awareness raising. But the results had been poor, insufficient resources had been made available, awarenessraising efforts had not been well targeted, and public awareness of FGM’s harmful effects was very low. Attempts to legislate against FGM had been thwarted by religious leaders and political will was lacking.]

VIII. Legal findings

A.ObligationsoftheStatepartyundertheConventioninrelationtofemalegenitalmutilation

53. Under the Convention and … general recommendation No. 31 … [FGM] is a harmful practice and a form of gender-based violence … . …

…

56. Under articles 2 (f), 5 (a), and 16 (1) (a), read in conjunction with article 5 (a), States parties are required to eliminate prejudices, stereotypes and customs that subordinate women to men and create gender inequality, which are at the root of female genital mutilation. They are also required to protect all women, including those who have not been subjected to genital mutilation, from the gender bias and stereotypes that make such mutilation a condition for marriage, thus depriving them of equality with men in the enjoyment of the right to enter into marriage. In addition, under article 2 of the Convention, … States parties must take measures to modify social and cultural patterns of conduct that are based on the idea of the inferiority of women and girls.

59. The Committee recalls that the obligations of States parties under the Convention do not cease in periods of armed conflict or in states of emergency resulting from political events. Consequently, the security crisis and the state of emergency that have been in place since 2015 do not relieve Mali of its obligations under the Convention.

D. Graveorsystematicnatureoftheviolations

80. The Committee finds that the State party is responsible for the following:

(a) Grave violations of rights under the Convention, considering the discriminatory nature of female genital mutilation and the failure to fulfil its obligation to protect the majority of women and girls from female genital mutilation and ensure that they have appropriate access to health care and justice, thereby exposing them to severe physical and psychological suffering, impeding investigations and obstructing victims’ access to remedies;

(b) Systematic violations of rights under the Convention, considering that the State party has knowingly omitted to take effective measures to:

(i) Criminalize and prohibit female genital mutilation and ensure that the crime is punished by severe penalties;

(ii) Provide for measures, including legislative measures, to protect, care for and rehabilitate victims of female genital mutilation;

(iii) Counter negative cultural attitudes and social norms that legitimize female genital mutilation and the stigmatization of women and girls who do not agree to such mutilation.

A Kenyan Case Study

FGM/C has been litigated in a number of states. Here we consider a case from Kenya in which the court addresses various challenges seeking to prevent the implementation of that country’s Prohibition of Female Genital Mutilation Act, 2011. The 2001 Children’s Act had already criminalized the subjection of children to harmful cultural practices, and the 2015 Protection against Domestic Violence Act classified FGM as violence. In 2019, a Presidential Directive called for FGM’s eradication by 2022, an effort that is promoted by a semiautonomous Anti-FGM Board. The prevalence of the practice diminished from 32 percent in 2003, to 27 percent in 2009, and 21 percent in 2014.

According to UNICEF, FGM programmes have focused on consultations, observation, and open dialogue with community members so that programmes can be tailored to specific locations. Efforts have also been made to identify ‘alternative rites of passage’ that substitute for FGM but are considered meaningful to the individual and the community.250

KAMAU V. ATTORNEY-GENERAL ET AL., HIGH COURT OF KENYA AT NAIROBI, CONSTITUTIONAL PETITION NO.

244 OF 2019 (17

MARCH 2021)

JUDGES ACHODE, KIMONDO, AND MUIGAI,

Introduction

1. Dr. Tatu Kamau (hereafter the Petitioner) is a medical doctor. She challenged the constitutionality of the Prohibition of Female Genital Mutilation Act … .

3. The Petitioner pleaded that … the Act contravenes … the Constitution by limiting women’s choice and right to uphold and respect their culture; ethnic identity; religion; beliefs; and, by discriminating between men and women. She opines that the Act is an “imperialist imposition from another culture that holds a different set of beliefs or norms”.

4. She contended that …the Act expressly forbids a qualified medical practitioner from performing female circumcision, thereby denying adult women access to the highest attainable standard of health, including the right to healthcare enshrined under Article 43 (1)(a) of the Constitution.

5. When the Petitioner testified, she claimed to speak on behalf of communities that practice female circumcision; and, for the women who have been jailed for carrying out the rite.

6. One of the main issues in the Petition is whether it is constitutional to prohibit an adult woman from freely choosing to undergo the rite under the hand of a trained and licensed medical practitioner.

…

Whether FGM is a harmful cultural practice

…

128. The Petitioner posited that no particular culture is superior to another. She submitted that the rights of willing women from communities that practiced the now prohibited cultural ritual of female circumcision have been violated by the Act. She was of the view that their consent has been disregarded … .

250 UNICEF, ‘Case Study on the End Female Genital Mutilation (FGM) Programme in the Republic of Kenya’ (April 2021).

129. To answer these issues, it is necessary to examine FGM, its causes and consequences and whether they occasion harm. …

131. … Articles 53 and 55 of the Constitution refer to harmful cultural practices in protection of children and the youth. The Maputo Protocol [Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, 2003] in Article 1 (g) defines Harmful Practices as: all behavior, attitudes and/or practices which negatively affect the fundamental rights of women and girls, such as their right to life, health, dignity, education and physical integrity.

133. Article 5 of the Maputo Protocol calls for the elimination of harmful practices, by prohibiting and condemning “all forms of harmful practices which negatively affect the human rights of women and which are contrary to international standards”.

134. … [T]he commitment to eliminate harmful practices is linked not only to promoting the health and wellbeing of women but also to women’s human rights.

135. The assumption is that anyone above the age of 18 years undergoes FGM voluntarily. However, this hypothesis is far from reality, especially for women who belong to communities where the practice is strongly supported. The context within which FGM/C is practiced is relevant as there is social pressure and punitive sanctions. From the evidence, it is clear that those who undergo the cut are involved in a cycle of social pressure from the family, clan and community. They also suffer serious health complications while those who refuse to undergo it suffer the consequences of stigma. Women are thus as vulnerable as children due to social pressure and may still be subjected to the practice without their valid consent.

136. From the evidence before us, it is clear that the rationale for FGM/C varies from one community to another. In some communities FGM/C is a rite of passage to adulthood or womanhood; it fosters virginity and modesty and makes for better marriage prospects. In other communities it is a measure to curb women’s sexual desire while in others it confers social status in the community. In some cultures, if an uncircumcised woman marries into the community she is at risk of undergoing FGM/C upon being married or during her first pregnancy or labour.

137. All survivors disclosed devastating immediate, short-term and long-term effects [of] FGM/C. They underwent FGM/C at [the] young and tender age of 9 to 14 years. They told the court that they experienced excruciating pain during cutting and thereafter until the wound healed and on occasions that they undertook biological functions. They suffered bleeding, incontinence and in the long term psychological and even psychotic conditions from trauma. …

139. In Katet Nchoe & Ano v Republic, High Court Nakuru, … [2011] eKLR, the accused persons were charged with manslaughter arising out of FGM. … The Court held:

In our case, FGM is certainly harmful to the physical and no doubt psychological and sound well-being of the victim. It may lead to child birth complications, in this case, it led to premature death of a teenager. That kind of custom could be truly well discarded and buried in the annals of history, just as we no longer remove our 2, 4 or 6 teeth from our lower jaw, or adorn our faces, cheeks with healed blisters.

140. The Petitioner contended that Section 19(1) of Act expressly forbids a qualified medical practitioner from performing female circumcision thereby denying willing adult women access to the highest attainable standard of health … .

141. Medicalization of FGM/C does not mitigate harm on the girl /woman as demonstrated by the FGM/C survivors who deposed affidavits and/or testified in Court were consistent and had similar experience after FGM/C. …

142. … Under Article 2 (4) [of the Constitution] any law, including customary law that is inconsistent with the Constitution is void to the extent of the inconsistency and any act or omission in contravention of the Constitution is invalid.

143. Some harmful cultural practices are nonetheless valued as ‘traditional cultural heritage’ in some communities. Cultural rights intertwine with human rights in certain social spaces, and are not easy to separate but the Constitution offers the first most important standard against which the relevance of all other laws, religions, customs, and practices are to be measured.

144. The Constitution also restricts customary law and religions through certain other provisions whose overall effect is to rid of harmful traditional practices. …

…

148. The challenge is one of balancing the competing rights under Articles 26 (right to life), Article 27 (on equality and freedom from discrimination), Article 28 (on human dignity) Article 29 (on freedom and security of the person) and Article 43 (on the highest attainable standard of health and reproductive healthcare) against the rights in Articles 11, 32 and 44 (on culture, religion, belief and language).

149. Article 25 of the Constitution prescribes fundamental rights and freedoms that shall not be limited. The right to enjoy one’s culture religion and belief as envisaged in Articles 11, 32 and 44 are derogable.

150. Article 24 prescribes that the right and fundamental freedom may be limited to the extent the limitation is reasonable and justifiable based on human dignity equality and freedom. The limitation shall be proportionate to the legitimate aim.

153. [D]espite the rights enshrined in Articles 11, 32 and 44 of the Constitution relating to culture, religion, beliefs and language, the rights can be limited due to the nature of the harm resulting from FGM/C to the individual’s health and well-being.

154. We shall now comment briefly on the exclusion of Type IV FGM/C. Section 2 of the Act defines FGM/C Type I, II & III but excludes Type IV which the WHO includes as “unclassified”. The latter includes any other procedure involving, genital pricking, piercing with tongs or scissors including razor blades, incising and stretching of the clitoris/labia.

155. Section 19 of the Act criminalizes FGM/C except where it is a surgical operation for a person’s physical and mental health or at any stage of labour or birth. It further provides that culture, religion, custom or practice or consent shall not be a defence.

[Earlier in the judgment (at para. 106) the court had noted that practices omitted by the Act include cosmetic surgeries, labiaplasty, piercing and burning of female genitalia with corrosive substances and so forth. As a result, it noted (para. 107) that the Act favours a miniscule of the population who engage in such Type practices.]

156. We find that from the stand point of criminal law a lacuna is created that hampers the effective enforcement of the Act. The criminalization of the three types of FGM/C and not Type IV, which is unclassified, makes it difficult to effectively enforce the Act. There seems to be no objective or professional process to distinguish between the various types of FGM/C during investigation or prosecution.

Whether the enactment of the FGM Act violated the right of women to uphold culture and identity

157. Culture, and in particular the desire to preserve one’s cultural identity, is the central plank of the Petitioner’s case in support of FGM/C. … [T]he preamble to the Constitution recognizes the culture and customs of the Kenyan people … .

…

159. According to the 4th Interested Party, the enactment of the Act was necessitated by the need to shield women in communities that advocate for FGM/C and who have no say or capacity to give the consent when it comes to FGM/C. The practice prior to the enactment of the Act was that the decision of when, where and who will perform the act was decided by men. It was urged that whereas Article 44(1) and (2) of the Constitution

guarantees a person’s right to participate in the cultural life of his or her choice and to enjoy his or her culture, sub-article (3) thereof prohibits a person from compelling another to perform, observe or undergo any cultural practice or rite.

160. The Petitioner however argued that consenting female adults should not be prevented or prohibited from undergoing female circumcision which she says is an age old valued tradition among certain communities. …

161. … [I]t is no defence to a charge under the [Act] that the person on whom the act involving female genital mutilation was performed consented to that act … .

167. From the evidence of the survivors S.S.H., F.A.S.A. and those who escaped the cut like R.J.K, they all confirmed the misinformation, deception and societal pressure they were subjected to, to undergo the cut. For instance, when F.A.S.A told her parents that she did not want to go through the cut, her mother told her that no one would marry her if she missed the cut. She threatened to report her mother to the Police. Nevertheless, her father took her and her sister to the doctor and they underwent the cut. R.J.K may have escaped the cut, but she suffered beatings from irate family members and was shunned by the community and prospective suitors. She finally relocated to Nairobi.

…

170. According to the 2nd respondent, the context in which FGM/C is practiced within the various communities is a conundrum affecting not only women from communities practicing FGM/C but also women married into communities practicing FGM/C who are forced to undergo the cut in order to fully participate in the lives of the community and gain ‘respect and acceptance from their loved ones and elders’ in the communities into which they have married.

181. On discrimination, the Petitioner contended that the impugned Act overtly favours the cultural practices of one gender against the cultural practices of the other gender in contravention of Article 27 of the Constitution which provides for equality and freedom from discrimination based on gender. It was urged that while men were free to undergo a similar surgical procedure, the Act showed open intolerance to adult women who wished to undergo female circumcision to uphold their culture.

[The court then reviewed the relevant Constitutional provisions, as well as those of the UDHR, the CEDAW Convention, and the African Charter on Human and Peoples’ Rights.]

195. The second stage of analysis is to interrogate whether the prohibition of female circumcision while allowing male circumcision resulted in unfair discrimination. Indeed, the reality of our society is that men and women are treated differently with regard to cultural rites.

196. Whereas the evidence adduced hereto points to discrimination, we are not convinced that the said discrimination was unreasonable. …

197. The 1st and 2nd Respondents argued that FGM/C was a harmful cultural practice and was not similar to male circumcision. It was their evidence that equating FGM/C to male circumcision was flawed stating that unlike male circumcision which boasts of health benefits, female circumcision was both harmful and with no health benefits. …

202. After a careful examination of the provisions of the Act against those of Article 28 of the Constitution, we are of the considered view that the impugned Act does not violate the Constitution or women’s right to dignity.

203. On the main issue of whether the right to culture has been violated, the Petitioner faulted the Act for condemning and misrepresenting the age old tradition as violent and dangerous. In particular, that the Act defines ‘female circumcision’ as ‘mutilation’ which connotes an intention to incapacitate and destroy. She took the view that female circumcision is part of the national heritage and history. This, the Petitioner argued, infringed upon women’s right to practice the cultural life of their choice making the Act contra-constitution.

204. Article 11(1) of the Constitution recognizes culture as the foundation of the nation and as the cumulative civilization of the Kenyan people and nation. Article 11(2)(a) obligates the state to promote all forms of national and cultural expression … .

207. Culture is dynamic and not static and will continue to grow responding to new factors. It is also fluid and changes from time to time. It is susceptible to be swayed by many factors such as religion, education, and influence from other communities, inter-marriage and urbanization. But there are certain aspects of culture that identify a particular group, their history, ancestry and way of life and this diversity is recognized and protected by the Constitution. See Mohamed Ali Baadi and others vs. Attorney General & 11 others [2018] eKLR.

210. The Constitution grants the freedom to exercise one’s culture. However, that freedom has to be carried out in line with the other constitutional provisions. From the law we observe that culture entails various modes of expression. Therefore, what is limited is any expression that will cause harm to a person or by a person to another person. FGM/C falls into the latter category.

211. It therefore follows that while our Constitution has a general underlying value of freedom, this value of freedom is subject to limitation which is reasonable and justifiable. Additionally, it has not inscribed the freedom to inflict harm on one’s self in the exercise of these freedoms. …

…

214. The evidence before us demonstrates that the practice of FGM/C implicates not only the right to practice cultural life but also the right to health, human dignity and in instances when it results in death, the right to life. The provisions of international treaties reproduced hereto are also clear that not all traditional practices are prohibited, but only those that undermine international human rights standards.

215. In sum there is no doubt that FGM/C was central to the culture of some communities in Kenya including the Kikuyu to which the petitioner belongs. However, from the medical evidence, and as discussed earlier, we are left in no doubt about the negative short term and long term effects of FGM/C on women’s health. We have also discussed the absence of consent by victims who undergo the rite which violates Article 44 (3) of the Constitution. We are not persuaded that one can choose to undergo a harmful practice. From the medical and anecdotal evidence presented by the respondents, we find that limiting this right is reasonable in an open and democratic society based on the dignity of women.

Disposition and Final Orders.

216. Our final orders shall be as follows:

a) That the Amended Petition is devoid of merit and is hereby dismissed.

b) That the Attorney General (1st Respondent) shall forward proposals to the National Assembly to consider amendments to section 19 of the Prohibition of Female Genital Mutilation Act (No. 32 of 2011) with a view to prohibiting all harmful practices of FGM as set out in this judgment.

Male Circumcision

In 2012, a German court held that the religious circumcision of male children constituted the criminal offence of causing bodily injury and that the child’s right to self-determination should prevail over the parent’s right to freedom of religion. The case involved the circumcision of a four-year-old Muslim boy who was taken to hospital suffering extensive bleeding.

While the doctor was ultimately acquitted, the court decided that a child’s right to self-determination superseded his parents’ right to freedom of religion. The decision prompted widespread uproar, particularly among Jewish and Muslim groups, and as far away as Turkey, Israel and the United States. Germany’s Central Council of Jews

called it “an unprecedented and dramatic intrusion on the right to self-determination of religious communities.” Ali Demir, the chairman of the Islamic Religious Community, argued that circumcision is a “harmless procedure, a tradition that is thousands of years old and highly symbolic.”

Ultimately, the Bundestag, Germany’s parliament, passed a law allowing the religious procedure. According to the new rules, specially qualified members of religious communities can perform the operation in the first six months of a boy’s life, after which it must be performed by a physician.

In 2013, the issue was addressed in a resolution adopted by the Parliamentary Assembly of the Council of Europe:

2. The Parliamentary Assembly is particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, among others, female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersex children, and the submission to, or coercion of, children into piercings, tattoos or plastic surgery.

7. The Assembly therefore calls on member States to:

7.5.1. publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these, thus providing public authorities with the mechanisms to prevent and effectively fight these practices, including through the application of extraterritorial “legislative or other measures to establish jurisdiction” for cases where nationals are submitted to female genital mutilation abroad …;

7.5.2. clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the nonmedically justified circumcision of young boys;251

The characterization of male circumcision in this way drew concerted criticism from both the Jewish and Muslim communities, and the Assembly responded two years later with a new resolution:

9. As far as circumcision of young boys is concerned, the Assembly refers to its Resolution 1952 (2013) on children’s right to physical integrity and, out of a concern to protect children’s rights which the Jewish and Muslim communities surely share, recommends that member States provide for ritual circumcision of children not to be allowed unless practised by a person with the requisite training and skill, in appropriate medical and health conditions. Furthermore, the parents must be duly informed of any potential medical risk or possible contraindications and take these into account when deciding what is best for their child, bearing in mind that the child’s interest must be considered the first priority.

251 ‘Children’s right to physical integrity’, Resolution 1952 (2013).

11. The Assembly is convinced that education is the key to combating ignorance, breaking down stereotypes, building trust and mutual respect and promoting sincere support for the shared values of living together.252

RE B AND G (CHILDREN) (CARE PROCEEDINGS) [2015] EWFC 3

SIR JAMES MUNBY, PRESIDENT OF THE FAMILY DIVISION:

[1] These are care proceedings in relation to two children, B, a boy, born in July 2010 and G, a girl, born in July 2011 … . … [B]oth the father, F, and the mother, M, come from an African country … . The family are Muslims.

[4] The most important issue in the proceedings is whether G has been subjected to female genital mutilation (FGM) and, if she has, what the implications of that are in relation to planning for her and her brother’s future.

[55] … FGM is a criminal offence under the Female Genital Mutilation Act 2003. It is an abuse of human rights. It has no basis in any religion. [As I said in 2004] it is a “barbarous” practice which is “beyond the pale.” [Other judges have described it as “an evil practice …” and .. “a repulsive practice ... deleterious to women’s health.” I entirely agree.

[59] Circumcision of the male … is the removal of some, or all, of the prepuce (foreskin) … . [It] involves the removal of a significant amount of tissue, creates an obvious alteration to the appearance of the genitals and leaves a more or less prominent scar … .

[60] It can readily be seen that although FGM of WHO Types I, II and III are all very much more invasive than male circumcision, at least some forms of Type IV, for example, pricking, piercing and incising, are on any view much less invasive than male circumcision.

[61] It is also important to recognise that comparatively few male circumcisions are performed for therapeutic reasons. Many are performed for religious reasons (as in Judaism and Islam). However, large numbers of circumcisions are performed for reasons which, as the particular prevalence of the practice in, for example, the English-speaking world and non-Muslim Africa suggests, are as much to do with social, societal, cultural, customary or conventional reasons as with anything else, and this notwithstanding the justifications sometimes put forward, that circumcision of the male is hygienic or has prophylactic benefits, for example, the belief that it reduces the incidence of penile cancer in the male, the incidence of cervical cancer in female partners and the incidence of HIV transmission.

[62] … There is nothing in the case-law to suggest that male circumcision is, of itself, such as to justify care proceedings … . On the contrary, judges in the Family Division have on occasions made orders providing for non-therapeutic circumcision … . …

[63] In the present case the point arises in striking form. The family, as I have said are Muslims. I assume, therefore, that B either has been or will in due course be circumcised. Yet … this is not a matter that has been raised before me. There is no suggestion, nor could there be, that B’s circumcision can or should give rise to care proceedings. … G’s FGM Type IV (had it been proved) would have been relied upon by the local authority, prior to its change of stance referred to above, as justifying the adoption of both children, even though on any objective view it might be thought that G would have subjected to a process much less invasive, no more traumatic (if, indeed, as traumatic) and with no greater long-term consequences, whether physical, emotional or psychological, than the process to which B has been or will be subjected.

[64] … … The explanation … is simply that in 2015 the law generally, and family law in particular, is still prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or

252 Parliamentary Assembly of the Council of Europe, ‘Freedom of religion and living together in a democratic society’, Resolution 2076 (2015).

conventional reasons, while no longer being willing to tolerate FGM in any of its forms … . Certainly current judicial thinking seems to be that there is no equivalence between the two … .

[68] … In my judgment, any form of FGM constitutes “significant harm” … . What then of male circumcision?

[69] … Given the comparison between what is involved in male circumcision and FGM WHO Type IV, to dispute that the more invasive procedure involves the significant harm involved in the less invasive procedure would seem almost irrational. In my judgment, if FGM Type IV amounts to significant harm, as in my judgment it does, then the same must be so of male circumcision.

[70] I should add that my conclusions in relation to whether FGM, including FGM Type IV, constitutes “significant harm” for the purposes of family law, is quite separate from the question of whether particular examples of FGM Type IV involve the commission of criminal offences under the Female Genital Mutilation Act 2003. As I have already pointed out, FGM Type IV comes within the ambit of the criminal law only if it involves “mutilation”. The question of whether a particular case of FGM Type IV – for example, the case as presented here by the local authority in relation to G – involves mutilation is, in my judgment, not a matter for determination by the family court, and certainly not a matter I need to determine in the present case. It is a matter properly for determination by a criminal court as and when the point arises for decision in a particular case.

[71] … The fact that [FGM] may be a “cultural” practice does not make FGM reasonable; indeed, the proposition is specifically negatived by section 1(5) of the 2003 Act. And, as I have already pointed out, FGM has no religious justification. So … it can never be reasonable parenting to inflict any form of FGM on a child.

[72] It is at this point in the analysis, as it seems to me, that the clear distinction between FGM and male circumcision appears. Whereas it can never be reasonable parenting to inflict any form of FGM on a child, the position is quite different with male circumcision. Society and the law, including family law, are prepared to tolerate non-therapeutic male circumcision performed for religious or even for purely cultural or conventional reasons, while no longer being willing to tolerate FGM in any of its forms. There are, after all, at least two important distinctions between the two. FGM has no basis in any religion; male circumcision is often performed for religious reasons. FGM has no medical justification and confers no health benefits; male circumcision is seen by some (although opinions are divided) as providing hygienic or prophylactic benefits. Be that as it may, “reasonable” parenting is treated as permitting male circumcision.

[73] I conclude therefore that although both involve significant harm, there is a very clear distinction in family law between FGM and male circumcision. FGM in any form will suffice to establish ‘threshold’ in accordance with section 31 of the Children Act 1989; male circumcision without more will not.

…

[78] … Plainly, given the nature of the evil, prevention is infinitely better than ‘cure’. Local authorities need to be pro-active and vigilant in taking appropriate protective measures to prevent girls being subjected to FGM. And … the court must not hesitate to use every weapon in its protective arsenal if faced with a case of actual or anticipated FGM. … Given … the distressingly great prevalence of FGM in this country even today, some thirty years after FGM was first criminalised, … the family courts [and] the criminal courts, … have an important role to play and a very much greater role than they have hitherto been able to play.

… * * *

Scholars have had a mixed reaction to the issue raised, but left unresolved, in the Re B and G (children) case. Kai Möller, in ‘Male and Female Genital Cutting: Between the Best Interest of the Child and Genital Mutilation’, 40 Oxf. J. Leg. Stud. (2020) 508, provides a justification for banning both male and female genital cutting.

… [T]he current discourse around female genital cutting has not provided a convincing foundation for the view that any interference with the female genitals is considered categorically impermissible. The reasons … usually advanced … – pointing to the harm,

lack of religious motivation, absence of medical benefits, and existence of patriarchal power structures – are valid considerations, but they do not apply to all kinds of genital cutting and in particular not the less intrusive forms. [This article proposes] a different basis for the rejection of all forms of female genital cutting, namely girls’ right to physical integrity. … [A] girl’s body is not a ‘resource’ that the parents are free to ‘trade in’ for some other benefit, such as a strengthening of her female identity or the bringing about of a conviction that no pain will overwhelm her; rather, the parents are obligated to respect and protect the integrity of their daughter’s body and in particular her genitals. A further advantage of this approach is that it justifies convincingly why all kinds of female genital cutting are wrong, including those that are considerably less invasive and harmful than male cutting, and it cuts off any discussion of whether some, milder, forms of genital cutting should be considered acceptable. [The author contends that] the current approach of the law, according to which male genital cutting is in principle permissible and can even be ordered by a court, is indefensible and must be changed. … [T]he reasons commonly relied on to justify the differential treatment by the law of male and female genital cutting are unconvincing. We cannot, therefore, maintain that female genital cutting is categorically unacceptable while endorsing a balancing approach to male cutting. Furthermore, the correct way to think about the wrongness of genital cutting is to regard it as intrinsically wrong because it violates the right to physical integrity of the child; thus, the conclusion that genital cutting is wrong as a matter of principle applies equally to boys and girls.

Brian D. Earp and Sara Johnsdotter, in ‘Current Critiques of the WHO Policy on Female Genital Mutilation’, 33 Your Sexual Med. J. (2021) 196 agree that there is an element of parallelism in the two cases, but propose a rather different approach. They begin with a survey of scholarly critiques that have been made of the terminology of FGM, including claims that it is imprecise, inaccurate, misleading, harmful, ethnocentric, and sexist:

… it is sometimes argued that women who support, manage, oversee, and even perform FGC in their communities must be victims of brainwashing or false consciousness, having internalized their inferior status to men. However, this argument is not as straightforward as it may seem.

To begin with, women from affected communities who endorse FGC (usually the majority), regularly report believing that modified genitalia in both males and females are more hygienic, more civilized/respectable, and more esthetically appealing. … …

…[I]t is typically assumed that support for FGC by affected women must be irrational, or, at best, a regrettable psychological adaptation to an unjust situation. However, this assumption has itself been argued to rest on a patriarchal stereotype that ignores, devalues, or denies women’s agency despite robust evidence of its existence in the relevant spheres. …

… [Other concerns raised] include the following:

1. The characterization seems to reflect longstanding racist and colonial stereotypes of “primitive” African societies, in which black and brown women, constructed as passive victims of male-oriented cultural practices, need to be rescued from the men in their own villages, who are believed to be brutal and barbaric.

This is in spite of the fact that:

2. Virtually all societies that practice medically unnecessary FGC also practice medically unnecessary MGC, usually in a parallel ceremony serving similar social functions. …

3. Depending on the group, either the male or the female form of cutting may be more severe, risky, or potentially detrimental to sexual enjoyment. The most dangerous and deadly form of genital cutting anywhere in the world appears to be … MGC as it is practiced … among the Xhosa of South Africa.

4. When practiced as a rite of passage into adulthood (or as part of a Muslim religious initiation), neither MGC nor FGC is typically intended to undermine the initiate’s capacity for sexual pleasure. …

5. Almost invariably, where they occur together, men are in charge of the male rites and women are in charge of the female rites, often with little or no mutual knowledge or influence over the workings of the other. …

…

As it stands, the WHO appears to be engaged in highly selective condemnation of only non-Western, female-only genital cutting, irrespective of harm, consent, or the comparability of the cutting to other medically unnecessary practices. …

In 2022, the UN Secretary-General reported (UN Doc. A/77/312, para. 75) that ‘a girl is approximately one third less likely to have undergone [FGM] compared with three decades ago.’ But the report also acknowledged the steady presence of FGM ‘in many high-prevalence countries over several decades’. Successful interventions were said to include:

…health education and community dialogues with parents and religious leaders; advocacy and awareness-raising among key stakeholders, especially communities and the media; investment in the education of both girls and their mothers; legislation, together with political will and enforcement; and the involvement of health-care workers as key change agents in prevention.

QUESTIONS

1. In 2010 the American Academy of Pediatrics adopted a Policy Statement on ‘Ritual Genital Cutting of Female Minors’. While opposing all types of FGC that pose risks of physical or psychological harm, the statement also observed that ‘the ritual nick suggested by some pediatricians is not physically harmful and is much less extensive than routine newborn male genital cutting. There is reason to believe that offering such a compromise may build trust between hospitals and immigrant communities, save some girls from undergoing disfiguring and life threatening procedures in their native countries, and play a role in the eventual eradication of FGC. It might be more effective if federal and state laws enabled pediatricians to reach out to families by offering a ritual nick as a possible compromise to avoid greater harm.’ An alternative approach, proposed by Norway’s Children’s Ombudsman in 2011 is to set a minimum age of 15 or 16 for ritual male circumcision in order to respect ‘children’s best interests and their right to self-determination on religious and health matters’. Comment on these proposals in light of the materials above.

2. How convincing and/or useful do you find the WHO’s typology of FGM/C, noting the observations made by Earp and Johnsdotter above?

3. How would you apply a child’s right to physical integrity in the context of other common cultural practices, such as ear/nose piercing or male circumcision? How might it inform medical treatment of intersex and transgender children?

4. Condemnation of FGM/C by international human rights institutions and Western NGOs has led to pushback from some communities, who view the campaign as based in cultural imperialism and fear the ‘criminalisation of culture’.253 How would you respond?

2. Religion

No topic generates more controversy or indeed more complex ideas than relationships between (1) institutionalization of religion or religious belief or practice in the state and (2) human rights norms.254 From one perspective, religious beliefs and human rights are complementary expressions of similar ideas, although religious texts invoke the language of duties rather than rights. Important aspects of the major religious traditions canonical text, scholarly exegesis, ministries provide the foundation or justification for, or reinforce, many basic human rights. Evident examples include rights to bodily security, or to economic and social provision for the needy. From another perspective, religious traditions may impinge on human rights, and religious leaders may assert the primacy of those traditions over rights. Recall the illustrations in An-Na’im’s article, above. The banner of cultural relativism may here be held high. If notions of state sovereignty represent one powerful concept and force that challenges and seeks to limit the reach of the international human rights movement, religion can then represent another.

The topics in this section explore selected issues within this large theme. They involve the distinction sketched by some scholars between freedom of religion, and freedom from religion. The first freedom is threatened primarily by state conduct that prohibits public expression of religious belief and sharply restricts religious practice or ritual. Such conduct may stem from an ideologically secular state that seeks to limit the role of organized religions, or at the other extreme from fundamentalist states that will not tolerate other forms of religious expression. The second freedom from again is threatened primarily by the state, which may impose the beliefs or practices of an official or dominant religion on all citizens, whatever their religious community (if any, for some citizens will be secular or atheist). In such circumstances, human rights additional to the right to freedom of religion may also be implicated. Forms of gender discrimination enforced by the state may find roots in sacred religious texts. The state may repress certain speech that is widely viewed as offensive to the dominant religion. And so on.

These issues do not involve a simple dichotomy of the ‘state’ and ‘citizens’. As the materials in Chapters 6 and 7 have illustrated, religion-based restraints or obligations may be rooted in a broad religious culture that is both closely related to and distinct from the state, and may be insisted on or enforced by a range of non-state actors. Religion and society will often be as apt a framework for discussion as religion and state. The state itself may adopt many attitudes and pursue many policies, ranging from support of the religious culture to neutrality, to active opposition to a religion’s teachings and demands.

Before exploring some of the human rights dimensions, it is appropriate to note how significantly the general religious landscape is changing in the world. A 2015 report by the Pew Research Center, entitled The Future of World Religions: Population Growth Projections, 2010-2050 provides an overview:

The religious profile of the world is rapidly changing, driven primarily by differences in fertility rates and the size of youth populations among the world’s major religions, as well as by people switching faiths. … If current trends continue, by 2050:

• The number of Muslims will nearly equal the number of Christians around the world.

253 B. Shell-Duncan et al., ‘Legislating Change? Responses to Criminalizing Female Genital Cutting in Senegal’, 47 L & Soc. Rev. (2013) 803, 831.

254 N. Bhuta (ed.), Freedom of Religion, Secularism, and Human Rights (2019).

• Atheists, agnostics and other people who do not affiliate with any religion –though increasing in countries such as the United States and France – will make up a declining share of the world’s total population.

• The global Buddhist population will be about the same size it was in 2010, while the Hindu and Jewish populations will be larger than they are today.

• In Europe, Muslims will make up 10% of the overall population.

• India will retain a Hindu majority but also will have the largest Muslim population of any country in the world, surpassing Indonesia.

• In the United States, Christians will decline from more than three-quarters of the population in 2010 to two-thirds in 2050, and Judaism will no longer be the largest non-Christian religion. Muslims will be more numerous in the U.S. than people who identify as Jewish on the basis of religion.

• Four out of every 10 Christians in the world will live in sub-Saharan Africa.

The following materials start with a comparative survey of questions of religion and state and freedom of religion. These comparisons among states highlight a vital issue that permeates this section: what are the links between religious communities, or one religious community, and the state? The spectrum is large, from notions of separation to the pervasive interrelationships in several countries between Islam and the state.

a. Comparative Perspectives among States

Consider the following examples of different national approaches to the relationship between the state and religious groups.

W. COLE DURHAM, PATTERNS OF RELIGION STATE RELATIONS JOHN WITTE AND M. CHRISTIAN GREEN (EDS.), RELIGION AND HUMAN RIGHTS: AN INTRODUCTION (2011) 360

The configurations of religion-state relations across the world’s legal systems are remarkably diverse, reflecting differences of history, philosophy, religious demography, culture, constitutional and political systems, and numerous other factors. Moreover, religion-state relations in every country are in constant flux. … Yet broad patterns or types of relationships are discernible … .

Theocratic States

In this pattern type, the linkage between state and religion is so close that it is virtually impossible to distinguish state from religious rule. … [T]he theocratic state … postulates total unity of religious and political institutions. Theocratic states typically seek to replicate their vision of what divine rule would be like or what this vision calls for … . … The key … factor … is that they constitutionally subordinate all branches of government (legislative, executive and judicial) to a religious normative framework. In addition, they tend to institutionalize this subordination by providing strong linkages (if not outright merger) of religious institutions and state bodies.

The most obvious example of this type of regime is the Vatican City … .

Historically, there have been theocratic or religious states associated with many of the world’s religions … .

The primary current examples of theocratic or religious states are found in the Muslim world. Countries that consider themselves to be Islamic states according to their constitutions or basic laws include Afghanistan, Bahrain, Brunei Darussalam, Iran, Maldives, Mauritania, Oman, Pakistan, Saudi Arabia, and Yemen. … [T]hese countries … affirm in various ways that the State is subordinate to Islamic law, and … [give] religious leaders

institutional supervision authority to assure compliance with Islamic law. Some go further and entrench the religious character of the State by giving it constitutionally irrevocable status. … [T]he State itself is subordinated to a particular religious system … .

Established Religions

… [This category covers] systems in which there is an official state religion [that remains] in some sense distinct from and subordinate to the state … . In its ideal form, at least according to its Eastern Orthodox advocates, this type orchestrates a “symphony” of harmony between religion and the State. There is a broad range of possible “established religions,” stretching from systems in which the state religion is granted a strictly enforced monopoly in religious affairs to much more tolerant regimes such as those one finds in contemporary England, Norway, and Finland. Roman Catholicism has in the past been the state religion of a number countries where it was predominant most notably Spain and Italy and various Latin American countries. Evangelical Lutheranism remains the state church in Norway, Denmark, and Iceland … . Various branches of Eastern Orthodoxy constitute the established churches of Armenia and Greece.

Typically, though not always, established religions are declared to be the state religion in their constitutions. In the Muslim world, this is the case with respect to Algeria, Bangladesh, Djibouti, Egypt, Iraq, Jordan, Kuwait, Libya, Malaysia, Maldives, Morocco, Qatar, Tunisia, and the United Arab Emirates. …

Religious Status Systems

In a number of countries … the State recognizes the jurisdiction of a number of religious systems, typically in areas dealing with family law and inheritance. The legal system that applies typically depends on the religion of the individual. The European Court of Human Rights has held that such “plural legal systems” cannot be squared with the [ECHR]. But such systems clearly exist, including those in Israel, India, Lebanon, and a number of Muslim countries. One of the virtues of these systems is that they respect the autonomy of different religious communities and their right to administer their own religious law. [The risk is that they may] limit exit rights of those who wish to leave the community, or to interpret its norms in distinctive ways. There is also a risk that dominant groups can exploit such autonomy to justify second-class status for minorities … and may use it to construct ghettos … .

… While marking an advance in their day, however, such systems typically fail to provide full equality of treatment when assessed from the perspective of contemporary human rights law.

Endorsed Religions

[While not] formally affirming that one particular religion is the official or state religion, [these systems] acknowledge that a particular religion has a special place in the country’s history and traditions. This is now quite typical in countries with a Roman Catholic heritage … . In a similar vein, Thailand, and Sri Lanka endorse Buddhism. … The … acknowledgement of a special historical and cultural role can take different forms ranging from financial to mere symbolic support. It may take the form of a general acknowledgement of religious heritage (e.g., Christian heritage in Poland and Fiji; Eastern Orthodoxy in Georgia and Russia); a recognition of the role of a particular religion in nation’s formation (e.g., Timor-Leste and Paraguay); the recognition of a predominant religion; or recognition of religious phenomena, such as the existence of God, specific characteristics of deity, creationism, God’s omnipotence, omniscience and omnipresence, trinitarianism, monotheism, reference to religious founders, or other notions of sanctity. … [In some cases, this system] operates as a thinly disguised method of preserving the prerogatives of establishment and channeling significant aid to the favored religions.

Preferred Sets of Religions

This can be a variation of other forms of positive identification, except that multiple religions are favored. …

Cooperationist Regimes

… [These regimes take] a neutral but positive and “cooperative” stance toward religions in society. [They include] most European systems … . Typical in such schemes is substantial cooperation in church finance, religious education, various humanitarian services, and so forth, though at least in theory such aid is provided on a non-discriminatory basis … . … [But] it is easy to slip from cooperation to patterns of state preference, with a tendency to favor the major religions in a country.

Accommodationist Regimes

Accommodationism might be thought of as cooperation without any direct financial subsidies. Accommodation can be seen both in allowing certain types of indirect financial and other support for different religions and in protecting the freedom to act in accordance with distinctive religious beliefs. … Accommodationist regimes protect freedom … by not allowing statutes to carve out exceptions to constitutional and human rights guarantees of freedom of religion or belief. …

Separation

… [A]pproximately one-third of the nations on earth have some type of separationist regime. Some … view separation primarily as a method for protecting religion from the State; others see the “wall of separation” as a method of protecting the state and society from excessive religious power; many … see it as [both]. At the “benign neutrality” end, separation differs relatively little from accommodation, except that it insists on a more rigorous separation of religious and state institutions … . … [T]he mere reliance on religious premises in public argument may be deemed inconsistent with separationist principles.

Less benign forms of separationism make stronger attempts to cordon off religion from public life. … [R]eligious differences are not viewed as an appropriate justification for differential treatment. Inadvertent insensitivity to religious needs can easily result. Regulations initially formulated without religious animus can have the incidental effect of imposing unnecessary or disproportionately heavy burdens on religious groups. …

… From an accommodationist perspective, compulsory exclusion of religion from public life constitutes a form of discrimination. From a more rigorously separationist perspective, in contrast, separation treats all religions equally by relegating them all to the private sphere. Of course, this overlooks the fact that secular outlooks are not constrained in the same way. … [If] the public sphere expands to fill a substantially larger share of total social space, the space available for religion can shrink substantially. … Separation in its most objectionable guise demands that religion retreat from any domain that the State desires to occupy, but is untroubled by intrusive state regulation and intervention in religious affairs.

Laïcité

Laïcité is the specifically French model of separation, and has been retained in the legal systems of many of France’s former colonies. Thirty-four constitutions characterize the relationship of religion and the state in their respective systems not by proscribing establishment or by calling explicitly for separation, but by affirming that they are secular states. … While there are a broad range of interpretations of the notion of laïcité, it tends in general to generate systems that are at the rigid separationist end of separationism.

Secular Control Regimes

Prior to the end of the Cold War, a number of communist states pursued a course of militant atheism which was actively hostile to religion … . [S]tates such as China, Cuba, Vietnam, and North Korea continue to assert such policies. …

A control regime shares some surface similarities with established and historically favored religions, except that these regimes make a secular ideology the official worldview of the State, and seek to repress dissenters from that view (i.e., religious believers). …

Abolitionist States

At the negative end of the identification continuum lie regimes with the overt goal of eliminating religion as a social factor [such as] Albania during the Soviet era … .

The complexity of the sort of classification that Durham undertakes in the preceding reading is illustrated by the following comment by the UN Special Rapporteur on freedom of religion and belief (UN Doc. A/HRC/37/49 (2018)):

12. Studies … have produced myriad classification models for the relationships between State and religion. [One such approach is that used by Durham.] Others assess the role of constitutional stipulations in establishing and regulating the overall relationship between religious and State authorities.

13. A 2017 study, … of all 193 [UN Member States], concluded that some 42 per cent of States either declared official support for one religion (21 per cent) or conferred favour onto one or more religions (21 per cent). Another 53 per cent … did not identify with any faith or belief. A small number … (5 per cent) exerted “a very high level of control over religious institutions in their countries or hold a negative view of religion in general”. An earlier study, on the other hand, … produced 14 subcategories grouped into 4 overarching relationships between State and religion … concluding that 41 States had official religions, 77 favoured one or more religions, 43 did not identify with any religion and 16 had a negative view of the role of religion in public life.

14. Given such complexities, there is no consensus as to either how the relationships between State and religion should be classified, or on the terminology for characterizing their nature. The Special Rapporteur does not endorse any conclusion or particular model for such relationships generated by the abovementioned studies. …

In other words, capturing the complexities involved is both very challenging and politically fraught. The following readings thus confine themselves to offering snapshots of how the relationship between the state and religion has operated in practice in four very different settings: Germany, the United States, Cambodia, and China.

TOBIAS CREMER, NATIONS UNDER GOD: HOW CHURCH–STATE RELATIONS SHAPE CHRISTIAN RESPONSES TO RIGHT-WING POPULISM IN GERMANY AND THE UNITED STATES 12 RELIGIONS (2021)

254.

1. Introduction

This paper compares the cases of Germany and the United States to investigate how a country’s institutional settlement of Church–State relations can shape Christian communities’ responses to right-wing populist politics. Germany and the United States are representative of many western countries in having recently experienced a surge of right-wing populist movements, which prominently display Christian symbols and use Christian language. Pro-Trump rioters parading oversized crosses and Jesus flags during the storming of the Capitol in January 2021, or Germany’s far-[right] Alternative for Germany (AfD) stylising itself as the defender of Germany’s “Judeo-Christian heritage” are two … recent examples … . [T]he reactions of German and American Christian communities to such references are strikingly different. In the US, White Christians supported Donald Trump’s right-wing populist campaign at record-levels in the 2016 and 2020 elections and many American Christian leaders appeared at least tacitly supportive of the Trump administration. By contrast, German Protestants and Catholics were significantly less likely to vote for the AfD than irreligious voters, and Germany’s churches have emerged as some of the far right’s most outspoken public critics. …

5. Conclusions

… First, that even though different settlements of Church–State relations may be designed with similar intentions that is in the German and US cases with the aim to strengthen religion as a pillar of liberal democracy they often exercise opposing incentives and pressure structures on Christian communities as they confront right-wing populist movements. Second, that the effects of these different and pressure structures are often most directly felt by faith leaders, whose response to right-wing populism in Germany and the US appeared importantly influenced by the institutional settlement of Church–State relations. Specifically, Germany’s model of benevolent neutrality, which favours clear hierarchies, centralised structures and formally includes German faith leaders in the policymaking process, seemed to give clergy greater incentives to defend the status quo against populist attacks from the AfD, while also equipping them with the institutional basis and social prestige to do so without needing to fear major repercussions. By contrast, America’s formal “Wall of Separation” and unregulated religious marketplace, which is more conducive to flat hierarchies, de-centralised churches and informal access to policymaking, appears not only to have facilitated the rise of siege and victimhood narratives among some Christian leaders, thus making them less likely to publicly defend the status quo. But by making faith leaders more depended on personal relations for political access, and on donors and congregants for their livelihood, it has also raised the potential risks for faith leaders to condemn Trumpism especially at times when Donald Trump was in office and secularisation and de-institutionalisation already undermined deference to Christian leadership in the US. Third, this research suggests that by ways of shaping faith leaders’ willingness and ability to create social taboos against the populist right Church–State relations can also importantly influence the voting behaviour of Christians in the pews. Thus, Germany’s centralised system of benevolent neutrality appears not only to have encouraged the leadership of the Protestant and Catholic churches to be more outspoken against the AfD, but also to have boosted their ability to maintain social taboos against the AfD by enshrining their status as foremost representatives of Christianity in German society. By contrast, America’s decentralised, non-hierarchical and pluralistic system, produces less deferential authority structures. Instead, the decentralised structure of denominations, as well as the prominence of nondenominational leaders, appeared to significantly undermine the traditional religious establishments’ sway over voters and their ability to create and maintain taboos around Trumpism.

BENJAMIN LAWRENCE, SAFFRON SUFFRAGE: BUDDHIST MONKS AND CONSTITUTIONAL POLITICS IN CAMBODIA

37 J. L. & RELIG. (2022) 259

Introduction

Shortly before the UN-administered elections that formed Cambodia’s Constituent Assembly in 1993, … the leaders of the country’s two Buddhist sects, both approached Yasushi Akashi, the head of the United Nations Transitional Authority in Cambodia, known as UNTAC. Their request was … that Buddhist monks be formally excluded from the vote. Akashi refused … and instead insisted on adherence to the democratic norm of universal suffrage, thus ensuring that Cambodia’s Buddhist monks would, for the first time in the country’s history, participate in democratic election. Meanwhile, … [it was agreed] that the country’s constitution would include provisions for democratic elections based on “universal and equal suffrage” … . … [T]hese decisions created a fundamental source of constitutional contestation and debate that has rumbled on for decades, about the role of religion in Cambodian politics and the relationship between Buddhism and the state. …

It was the express wish of the two leaders of the Cambodian Buddhist community, or sangha … that Buddhist monks be precluded from voting. It is for this reason that Ian Harris, a scholar of Cambodian Buddhism, described the decision to allow monks to vote as an “imposition” and an act of “cultural insensitivity” by Akashi and UNTAC. …

…

Conclusion

… [These decisions] produced in Cambodia a new constitutional status quo wherein monks could actively engage in electoral politics. This new status quo has brought to the surface an underlying societal ambivalence over the role that Buddhism, and Buddhist monks, should play in politics. … [T]he country’s monks and religious institutions have sought different ways of resolving this constitutional tension … . The result, at least

with respect to Cambodia’s otherwise largely authoritarian constitutional context, has been a peculiarly liberal compromise. Rather than overriding the precedent set by the UN-administered election of 1993, by introducing a religious exception …, Cambodia’s political leaders have largely left it to the country’s Buddhist sangha to resolve the issues of constitutional practice surrounding monkish politics on its own. … [While] Cambodia’s various opposition parties have undoubtedly been more vociferous in their support of monks seeking to register to vote (perhaps reflecting their belief that they have the sympathy of much of the sangha, at least in its more populous lower ranks), the ruling Cambodian People’s Party has nonetheless rebuffed calls for government intervention.

For their part, Cambodia’s sangha authorities have clearly and repeatedly attempted to discourage and inhibit monks from voting or engaging in politics. Yet, they have largely refrained from formally preventing them from doing so. In the process, members of the Buddhist clergy have publicly contested the meaning of the Constitution, and actively employed constitutional arguments, as a way to further their cause. Of course, opposition to monks being allowed the right to vote has been explained in terms of religious doctrine, wherein political engagements are seen to risk corrupting the monks who are supposed to have assumed the role of “world renouncer” and delegitimizing the sangha as a set of supposedly politically neutral institutions. However, calls from the Supreme Patriarchs of both sects of the Cambodian sangha for state intervention to introduce and enforce a prohibition through constitutional or legislative amendments have also been articulated in constitutional terms, with clear reference frequently being made to Buddhism’s special status and the implicit responsibility this is considered to bestow on the government to protect the state religion. This has been countered by Buddhist monks, meanwhile, who have similarly insisted on their engagement in electoral politics, justifying it on both religious and constitutional grounds. As such, monks assert a sense of dual-identity … in which they can be both a secular, right-bearing citizen on the one hand, and a religious figure on the other. For some, the latter identity extends so far as to supplement the constitutionally grounded right to vote with an additional duty to do so in the interest of religiously infused conceptions of justice and goodness. The decision to vote need not always be part of a more general commitment to the pursuit of justice in the secular world through the practice of engaged Buddhism. Nonetheless, it is clear that at least for some Cambodian monks the philosophical foundations and ultimate aims of the two (the decision to go to the polls and the adoption of engaged Buddhism) often intersect.

SONGFENG LI, FREEDOM IN HANDCUFFS: RELIGIOUS FREEDOM IN THE CONSTITUTION OF CHINA

35 J. L. & RELIG. (2020) 113

[This analysis focuses mainly on Article 36 of the Constitution of China, which states:

Citizens of the People’s Republic of China enjoy freedom of religious belief.

No State organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion.

The State protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State.

Religious bodies and religious affairs are not subject to any foreign domination.]

… The question arises as to why the Chinese Constitution says that freedom of religion is protected when, in reality, it does not allow people to enjoy this right. It is easy to conclude that China’s constitution is not enforced and plays little role in China’s legal system, being only a symbolic document.

…

Taking the Chinese Constitution Seriously

… Why enshrine constitutional guarantees for the right to religious freedom, among others, when the CCP [Chinese Communist Party] obviously opposes such rights? Actually, the Chinese government attaches great importance to what the Constitution does and does not provide. …

Second, both the Chinese Constitution and the CCP’s constitution require the CCP to abide by the Constitution.

Third, Chinese leaders have come to realize the importance of the Constitution and have increasingly stressed the importance of implementing it.

Fourth, China has recently organized a Constitution Day, and established a constitutional oath system to promote respect for and implementation of the Constitution. … Both the setting up of a National Constitution Day and the establishing of a constitutional oath system are aimed at promoting the rule of law and highlighting the importance of upholding China’s Constitution.

Unlike the US Constitution, the Chinese Constitution is not a social contract that limits the power of government. Rather, it was formulated under the leadership of the CCP and represents the institutionalization and legalization of the party’s position and policies. … In short, the Chinese Constitution does not so much protect the fundamental rights and freedoms of every citizen as define the future direction of the whole country. … [T]he CCP and the Chinese government are under increasing pressure to implement the Constitution. Returning to the initial question, since the Constitution purports to protect freedom of religion and the Chinese government has stressed the implementation of the Constitution, why are there a large number of cases in which religious freedom has been violated? The answer is that the Chinese Constitution provides only a very limited protection for religious practice. Article 36 of the Constitution protects freedom of religious belief and “normal” religious activities. The government has the power to decide which activities are “normal” and which are “abnormal.” This leaves open the possibility that the government can deem various religious practices “abnormal” and thus outside the sphere of legal protection. …

Conclusion

… On the basis of the Chinese Constitution, citizens are free to believe what they want, but the government reserves the right to set the boundaries as to how the beliefs are practiced. And, more importantly, the limitations the government sets are dependent upon the Chinese Constitution. The Constitution establishes multiple limitations on religious freedom. First, [it] establishes state atheism as an official ideology, rather than remaining secular and neutral. All Chinese citizens, whether religious believers or not, are required to be educated by the atheistic government and under the leadership of the CCP. Second, religious freedom … is a legal right, rather than a fundamental right, which means that these so-called rights and freedom are vested by the Constitution, and since they are not inalienable, they are subject to legal restrictions. The NPC [National People’s Congress] can and does pass legislation, to a certain extent, limiting individuals’ religious freedom. Third, the Chinese Constitution stipulates basic obligations of citizens that limit religious freedom. Fourth, Article 36 … protects only the inner freedom of religious belief, not the freedom of religious practice. And the second half of Article 36 places restrictions on religious freedom. In sum, religious freedom in the Chinese Constitution is an exceedingly limited form of freedom.

b. International Law Perspectives

Here we turn to the universal human rights instruments. Note the limited degree to which those instruments have developed ideas about religion and state or religion and human rights, at least in relation to their far greater development of human rights ideas in fields like race, gender or democratic participation. But, as in many other areas of human rights, the space left open increases the importance of the role played by other actors such as treaty bodies and UN Special Rapporteurs. Indeed, the first major UN survey of the field was Arcot Krishnaswami’s 1960 Study of Discrimination in the Matter of Religious Rights and Practices (UN Doc. E/CN.4/Sub.2/200/Rev.1). He proposed 16 ‘basic rules’ to guide practice, and recommended their adoption

by the UN. But, since the ICCPR was then only in draft form and the United States was still blocking progress on it, nothing was done.

A starting point is Article 18 of the ICCPR, adopted in 1966:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

For the most part, with the exception of paragraph 4, the ICCPR followed the relevant content of the UDHR on this issue. It was widely assumed that a separate treaty on religious intolerance, as called for by the UN General Assembly in 1960, would later be drafted.255 But this soon became politically contentious and it took nine years of drafting before a non-binding declaration could be adopted:

DECLARATION ON THE ELIMINATION OF ALL FORMS OF INTOLERANCE AND OF DISCRIMINATION BASED ON RELIGION OR BELIEF GA RES. 36/55 (1981)

The General Assembly

...

Considering that the disregard and infringement of human rights and fundamental freedoms, in particular of the right to freedom of thought, conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering to mankind, especially where they serve as a means of foreign interference in the internal affairs of other States and amount to kindling hatred between peoples and nations,

Considering that religion or belief, for anyone who professes either, is one of the fundamental elements in his conception of life and that freedom of religion or belief should be fully respected and guaranteed,

Considering that it is essential to promote understanding, tolerance and respect in matters relating to freedom of religion and belief ...,

...

Proclaims this Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief:

Article 1

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have a religion or whatever belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

255 C. Evans, ‘Time for a Treaty? The Legal Sufficiency of the Declaration on the Elimination of All Forms of Intolerance and Discrimination’, 2007 BYU L. Rev. 617.

2. No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.

3. Freedom to manifest one’s religion or belief may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 2

1. No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or other belief.

2. For the purposes of the present Declaration, the expression ‘intolerance and discrimination based on religion or belief’ means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.

Article 3

Discrimination between human being on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.

Article 4

1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.

2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or other beliefs in this matter.

Article 5

1. The parents or, as the case may be, the legal guardians of the child have the right to organize the life within the family in accordance with their religion or belief and bearing in mind the moral education in which they believe the child should be brought up.

2. Every child shall enjoy the right to have access to education in the matter of religion or belief in accordance with the wishes of his parents or, as the case may be, legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians, the best interests of the child being the guiding principle.

Article 6

In accordance with article 1 of the present Declaration, and subject to the provisions of article 1, paragraph 3, the right to freedom of thought, conscience, religion or belief shall include, inter alia, the following freedoms: ...

(d) To write, issue and disseminate relevant publications in these areas;

(e) To teach a religion or belief in places suitable for these purposes;

(f) To solicit and receive voluntary financial and other contributions from individuals and institutions;

(g) To train, appoint, elect or designate by succession appropriate leaders called for by the requirements and standards of any religion or belief;

(h) To observe days of rest and to celebrate holidays and ceremonies in accordance with the precepts of one’s religion or belief;

(i) To establish and maintain communications with individuals and communities in matters of religion and belief at the national and international levels.

Article 7

The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.

Article 8

Nothing in the present Declaration shall be construed as restricting or derogating from any right defined in the Universal Declaration of Human Rights and the International Covenants on Human Rights.

The Declaration has been criticized for its lack of ambition and failure to address key issues, but in the absence of the political will or a propitious international environment for agreement on religious issues, it has been generally acknowledged as the best available platform:

We need to work on it as the basis (albeit an incomplete basis) of activism in an arena where few international platforms and standards actually exist. The Declaration makes a tenuous but welcome start in a field where much progress remains necessary – in elaborating legal standards, focusing on implementation of protected rights, and acknowledging the need to respond effectively to violations.256

Commenting on the Declaration, Donna Sullivan, in ‘Advancing the Freedom of Religion or Belief Through the UN Declaration on the Elimination of Religious Intolerance and Discrimination’, 82 Am. J. Int. L. (1988) 487 noted some of its shortcomings. The Declaration is directed at governments, so that ‘[i]nteractions among members of the same religious groups are … not easily analyzed under the Declaration.’ It is also premised upon a typical ‘Western model of religion, in which religious institutions and authority are structurally separable from political and other social institutions’. Sullivan observes that the Declaration omitted explicit reference to the freedom to change one’s religion or belief in order ‘to avoid the implicit approval of proselytizing’. But, in her view, that freedom remains implicit in the right to have a religion or belief, and that the ‘savings clause’ in Article 8 ensures that the standards in the UDHR and the ICCPR cannot be diminished. In relation to the concept of ‘intolerance’, she notes two views that have been taken of its meaning and significance in the Declaration:

... The view that intolerance describes the emotional, psychological, philosophical and religious attitudes that may prompt acts of discrimination or violations of religious freedoms is persuasive. Where intolerance fuels such conduct as killing or the destruction of property, these acts constitute violations of substantive international human rights, such as the right to life, and, in most cases, violations of national law. If intolerance motivates deprivations of the freedom to manifest religion or belief, these acts again constitute violations of substantive rights protected by the Declaration itself.

...

A second approach to combating intolerance, which was proposed during drafting but rejected, is to prohibit the expression of ideas based on religious hatred and the incitement of hatred and discrimination based on religion or belief. [See Article 20 of the ICCPR.] ...

256 N. Ghanea, ‘The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief: Some Observations’, in ibid (ed.), The Challenge of Religious Discrimination at the Dawn of the New Millennium (2003) 30.

In the absence of a treaty in this area, two other sources of elaboration of the content of the right have assumed particular importance. The first is a General Comment by the UN Human Rights Committee, established under the ICCPR, which adopts such documents to reflect its understanding and interpretation of the Covenant’s provisions. See Ch. 9A 3, below for a discussion of the nature and purpose of General Comments. The second are reports issued by the UN Human Rights Council’s Special Rapporteur on freedom of religion or belief, a mandate first created in 1986 to focus on ‘religious intolerance’ and changed in 2000 to its current title.

HUMAN RIGHTS COMMITTEE, GENERAL COMMENT NO. 22: THE RIGHT TO FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (1993)

2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions ... .

3. Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally ... .

4. The freedom to manifest religion or belief may be exercised ‘either individually or in community with others and in public or private’. The freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The observance and practice of religion or belief may include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or head coverings, participation in rituals associated with certain stages of life, and the use of a particular language customarily spoken by a group. In addition, the practice and teaching of religion or belief includes acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications.

5. The Committee observes that the freedom to ‘have or to adopt’ a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views, as well as the right to retain one’s religion or belief. Article 18.2 bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert ... .

6. The Committee is of the view that article 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way ... . The Committee notes that public education that includes instruction in a particular religion or belief is inconsistent with article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.

7. In accordance with article 20, no manifestation of religion or belief may amount to propaganda for war or advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence

8. Article 18.3 permits restrictions on the freedom to manifest religion or belief only if limitations are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a religion or belief and the liberty of parents and guardians to ensure religious and moral education cannot be restricted. In interpreting the scope of

permissible limitation clauses … limitations may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated …

9. The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its followers comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents to other religions or non-believers. In particular, certain measures discriminating against the latter, such as measures restricting eligibility for government service to members of the predominant religion or giving economic privileges to them or imposing special restrictions on the practice of other faiths, are not in accordance with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26 … .

10. If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under article 18 or any other rights recognized under the Covenant nor in any discrimination against persons who do not accept the official ideology or who oppose it. ...

REPORTS OF THE SPECIAL RAPPORTEUR ON FREEDOM OF RELIGION OR BELIEF

Individual experts appointed to this office can serve for a maximum of six years. Since 1986, there have been six different mandate-holders. The following two reports were prepared by Ahmed Shaheed, Special Rapporteur from 2016 to 2022.

i. Antisemitism (UN Doc. A/74/358 (2019))257

II.Combatingantisemitism…

4. … [A]ntisemitism [has] received scant attention as a human rights issue. Overall, data collection worldwide is limited, and in many States antisemitic harassment is significantly underreported. Nevertheless, reports of hostility, discrimination and violence motivated by antisemitism have increased in many parts of the world. …

IV.Keyfindings

11. The Jewish population was estimated at 14,606,000 worldwide in 2018, with 15 countries in the Americas and Western and Eastern Europe being home to the largest populations outside of Israel. …

12. Aptly termed “the oldest hatred”, prejudice against or hatred of Jews, known as antisemitism, draws on various theories and conspiracies, articulated through myriad tropes and stereotypes and manifested in manifold ways, even in places where few or no Jewish persons live. This includes ancient narratives promoted by religious doctrine and pseudoscientific theories offered in the latter half of the second millennium to legitimize bigotry, discrimination and genocide of Jews. More contemporary forms of antisemitism employ narratives about the role of Jews in society, frequently informing or intersecting with other forms of bigotry, misogyny and discrimination.

A. Historical narratives and tropes

13. Some of the oldest antisemitic narratives can be traced back to theologies that attributed collective guilt for the murder of Jesus to Jews, treating them as “malicious” and “evil”. Such tropes, which identify Jews as descendants of Judas or Satan and depict them as “cunning, controlling and powerful”, have been promoted through religious teachings and depicted in art, and they have sometimes motivated contemporary antisemitic

257 See generally G. Quer, ‘Antisemitism and the UN’, in A. Lange et al. (eds.), Confronting Antisemitism in Modern Media, the Legal and Political Worlds (2021) 413; and N. Gordon, ‘Between Human Rights and Civil Society: The Case of Israel’s Apartheid Enablers’, 48 L. and Soc. Inquiry (2023) 1.

acts. Other tropes reflect contempt for the Jewish religion, including the recurring false allegation that Jews engage in the ritual murder of non-Jews (the “blood libel”), and continue to pervade contemporary discourse.

14. Antisemitism is also often expressed in racialized terms, with Jewish people characterized as subhumans who must be excluded from “normal” human civilization. This pseudoscientific approach was used to justify the persecution of Jews in Nazi Germany and the subsequent acts of genocide committed by the Nazis and their accomplices against the European Jewish population, while antisemitic expressions of Holocaust denial seek to repudiate or minimize the harrowing historical facts of that systematic murder of 6 million Jews.

15. Assertions that Jews are a “wandering” people without a land or nation, whose members conspire to advance their collective interests to the detriment of their “host” countries, or that Jews constitute a “powerful, global cabal” that manipulates governments, the media, banks, the entertainment industry and other institutions for malevolent purposes, are also expressions of antisemitic attitudes. Many of those negative stereotypes were promulgated in the Protocols of the Elders of Zion, a discredited forgery published in the early twentieth century and widely disseminated in the Middle East, alleging a secret Jewish plan for world domination. Those stereotypes often underpin modern conspiracy theories attributing responsibility to Jews for everything from immigration to terrorist attacks.

B. Trends in contemporary rhetoric

16. The Special Rapporteur is alarmed by the growing use of antisemitic tropes by white supremacists, including neo-Nazis and members of radical Islamist groups, in slogans, images, stereotypes and conspiracy theories meant to incite and justify hostility, discrimination and violence against Jews.

17. The Special Rapporteur also takes note of numerous reports of an increase in many countries of what is sometimes called “left-wing” antisemitism, in which individuals claiming to hold anti-racist and anti-imperialist views employ antisemitic narratives or tropes in the course of expressing anger at the policies or practices of the Government of Israel. … [I]t is never acceptable to render Jews as proxies for the Government of Israel.

18. The Special Rapporteur further notes the claims that the objectives, activities and effects of the Boycott, Divestment and Sanctions movement are fundamentally antisemitic. The movement promotes boycotts and stockholder divestment initiatives against Israeli or international corporations and institutions that supporters of the movement maintain are “complicit” in violations of the human rights of Palestinians by the Government of Israel. …. He recalls that international law recognizes boycotts as legitimate forms of political expression and that non-violent expressions of support for boycotts are, as a general matter, legitimate speech that should be protected. However, he also stresses that expression that draws on antisemitic tropes or stereotypes, rejects the right of Israel to exist or advocates discrimination against Jewish individuals because of their religion, should be condemned.

E. Online manifestations of antisemitism

35. Antisemitic hate speech is particularly prevalent online. Unanimous concern raised by all those engaged for this report noted that platforms like Gab (a Twitter-like platform that permits hate speech), 4chan and Twitter provide a forum for people … to create networks in which they are able to share extreme antisemitic views. A study of online antisemitic hate speech found on Twitter in English revealed 4.2 million antisemitic tweets in one year alone, not including tweets of images or emojis. Publicly prominent Jewish individuals and organizations are also specifically targeted with antisemitic comments online.

39. Antisemitism online includes far-right tropes that Jews spearhead feminist, lesbian, gay, bisexual, transgender and intersex movements and immigration movements as a method of perpetrating a “white genocide”, conspiracy theories that have been repeated in the online manifestos posted by far-right terrorists prior to mass shootings in synagogues. ….

VI.Recommendations

…

A. States and political actors

76. Governments must also acknowledge that antisemitism poses a threat to stability and security and that antisemitic incidents require prompt, unequivocal responses from leaders. … [T]he commission of antisemitic hate crimes engages the obligation of the State under international human rights law to protect Jews against the violation of their fundamental rights. States must also invest in preventive security measures, compliant with international human rights law, to deter antisemitic hate crimes. They … [also] have an affirmative responsibility to address online antisemitism, as the digital sphere is now the primary public forum and marketplace for ideas.

77. States should enact and enforce hate crime legislation that recognizes antisemitism as a prohibited bias motivation and that is clear, concrete and easy to understand. …

ii. Islamophobia (UN Doc. A/HRC/46/30 (2021))

…

A. Key findings and conceptual framework

12. … Islamophobia [may be characterized] as a pool of ideas or ideologies that includes two overlapping processes whereby Islam and Muslims are essentialized and “othered”. While the precise character is contextspecific, in its most prevalent form, the Islamophobic mindset treats Islam – a global religion with widely diverse interpretations and practices worldwide – as a monolithic and fundamentalist creed that advocates violence, sexism and homophobia. Denying Islam of its status as a religion, the Islamophobic mindset considers Islam a fixed political ideology that endangers “Western civilization” and other nations where Muslims are a minority population. In parallel, as followers of Islam, Muslims are demonized as disloyal “others” who are intent upon imposing their values on non-believers through violence, “overbreeding” and the radicalization of “good” Muslims.

13. Scholars have explored how this latter process functions as a form of “racialization”, instilling the idea that Muslim identity is a fixed marker of cultural – not just religious – difference, characterizing Muslims as a foreign “other”. Simultaneously drawing upon Muslims’ religion, race and culture, Muslims are differentiated as a social group apart from the majority and treated as inferior on the basis of such perceived differences. As such, some recognize Islamophobia as a form of anti-Muslim racism. Scholars and human rights experts also underscore the gendered forms of the phenomenon whereby Muslim women – particularly Muslim women who wear a head covering – are cast as subordinates without agency, while Muslim men and those who look Muslim by virtue of their skin colour and facial hair, are deemed to be intrinsically violent. …

B. Dissemination of intolerant narratives

Harmful stereotypes and tropes about Muslims and Islam are chronically reinforced by those working in the mainstream media, powerful politicians, influencers of popular culture and academics. Muslims are generally underrepresented and are often mispresented in the media. In one study, the European Commission against Racism and Intolerance (ECRI) reported that in over 600,000 news items published in 2016 and 2017 in the Netherlands, the adjectives most used to describe Muslims were “radical”, “extremist” and “terrorist”; in contrast, people from the Netherlands were often described as “known”, “average” and “beautiful”. Other studies have shown that media outlets in several countries disproportionately focus on negative angles for news stories involving Muslims such as reporting on their perceived failure to integrate, and more media attention is often paid to terrorist attacks committed by Muslims than to terrorist attacks committed by far-right extremists.

16. … [M]any films depict Muslims negatively and play into harmful stereotypes, with some even claiming that the “Muslim-as-terrorist” film has become a legitimate genre (or subgenre) in its own right. …

C.Discrimination

Securitization

23. … Over the past two decades, Muslim individuals and communities have borne the brunt of the use and abuse of counter-terrorism measures. …

24. States have reportedly incorporated their essential services, including education and health care, within their national security apparatus in a way that disproportionately heightens surveillance of Muslims and potentially compounds existing inequalities, including educational and health outcomes. Doctors and other health personnel, social workers and educators are co-opted as enablers of the State’s securitization apparatus by being mandated to report who is ostensibly at risk of radicalization. …

V. Conclusions

70. Both conscious and unconscious bias against Muslims perpetuated by individuals, politicians, social influencers, the media and hate groups, among others, play a significant role in dehumanizing Muslims, motivating hate crimes, promoting discrimination and exacerbating socioeconomic exclusion. Scholars and rights monitors emphasize that Islamophobic attitudes often perpetuate a vicious circle whereby State policies validate private Islamophobic attitudes and actions, and the prevalence of such attitudes can propel State policies that penalize Muslims.

71. Collective blame cast on Muslims for terrorist acts purportedly carried out in the name of Islam, alongside Islamophobic attitudes that draw on negative overgeneralizations about Islam and essentializations of Muslims – which depict them as threatening and centre on constructions of irreconcilable cultural differences between Muslims and the values of majority populations – have fuelled acts of discrimination, hostility and violence against Muslim individuals and communities.

73. The Special Rapporteur emphasizes that international human rights law protects individuals, not religions. Nothing in the present report suggests that criticism of the ideas, leaders, symbols or practices of Islam is something that should be prohibited or criminally sanctioned. Rather, the Special Rapporteur emphasizes that the discrimination and intolerance that emanate from the ideologies of Islamophobia present a significant challenge to States’ aspirations to foster democratic pluralism and respect, protect and promote all human rights. Peaceful, inclusive, pluralistic societies that endeavour to respect the human rights of all persons regardless of religious or belief identity must oppose religious bigotry and racism, but they must also avoid censoring purely discursive speech.

74. … [I]t is essential to identify and evaluate how State structures perpetuate and legitimize Islamophobia and actively discriminate against Muslim individuals and communities.

DEFINING ANTISEMITISM

In 2016, the International Holocaust Remembrance Alliance (IHRA), an NGO, adopted a definition of antisemitism as a ‘non-legal tool’ to facilitate monitoring of relevant practices. It defines antisemitism as “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities”.

The definition offers some illustrations:

(a) Manifestations might include the targeting of the State of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic. …;

(b) Contemporary examples of antisemitism … could, taking into account the overall context, include …:

(i) Calling for, aiding or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion;

(ii) Making mendacious, dehumanizing, demonizing or stereotypical allegations about Jews …;

(iii) Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews;

(iv) Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the … the Holocaust;

(v) Accusing the Jews as a people, or Israel as a State, of inventing or exaggerating the Holocaust;

(vi) Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations;

(vii)Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of a State of Israel is a racist endeavour;

(viii) Applying double standards by requiring of Israel a behaviour not expected or demanded of any other democratic nation;

(ix) Using the symbols and images associated with classic antisemitism (e.g. claims of Jews killing Jesus or “blood libel”) to characterize Israel or Israelis;

(x) Drawing comparisons of contemporary Israeli policy to that of the Nazis;

(xi) Holding Jews collectively responsible for actions of the State of Israel.

The scope of the definition became a matter of considerable controversy. In response, the Special Rapporteur on freedom of religion or belief, Ahmed Shaheed (UN Doc. A/74/358 (2019)) provided this analysis:

53. The definition has been … endorsed by the European Parliament… and by the Secretary-General of the Organization of American States. It is used by a number of [NGOs] that monitor antisemitism and was recognized by the [UN] SecretaryGeneral … in 2018.

54. … [Critics] have expressed concern that it can be applied in ways that could effectively restrict legitimate political expression, including criticism of policies and practices being promoted by the Government of Israel that violate the rights of Palestinians. Such concerns are focused on three of the illustrative examples … namely [vii, viii and x, above]. The Special Rapporteur notes that the definition … does not designate them as examples of speech that are ipso facto antisemitic and further observes that a contextual assessment is required … . Nevertheless, the potential chilling effects … on speech that is critical of policies and practices of the Government of Israel must be taken seriously … . Therefore, the use of the definition, as a non-legal educational tool, could minimize such chilling effects and contribute usefully to efforts to combat antisemitism. When public bodies use the definition in any regulatory context, due diligence must be exercised to ensure that freedom of expression within the law is protected for all. …

In 2022, the Special Rapporteur on racism, E. Tendayi Achiume (UN Doc. A/77/512) offered a different response:

71. The Special Rapporteur … calls attention to the politically motivated instrumentalization of the fight against antisemitism, which is increasingly linked to the [IHRA definition] … . While reiterating the urgent need for Member States to remain committed to fighting antisemitism in all its manifestations, she urges greater attention and care regarding the implications of tools used in that context. …

72. … [The IHRA definition] has become highly controversial and divisive owing to its susceptibility to being politically instrumentalized and the [resulting] harm done to human rights … . [The rapporteur] cautions against reliance on the working definition as a guiding instrument for and at the [UN].

73. … About 350 leading scholars support an alternative definition of antisemitism established in the Jerusalem Declaration on Antisemitism … .258 …

75. Although the [IHRA] working definition is promoted as being “non-legally binding”, its de facto influence on the policy and practice of governments and private actors has contributed to violations of the human rights of freedom of expression, assembly and political participation, among others. … [I]t is precisely the “soft law” status of the working definition that effectively helps to undermine certain co-existent rights, without offering any remedy or means to legally challenge such violations. …

76. The [definition and examples] are wielded to prevent or suppress legitimate criticisms of the State of Israel, a State that must, like any other in the [UN] system, be accountable for human rights violations that it perpetrates. …

79. Precisely because the scourge of antisemitism remains an urgent issue …, the Special Rapporteur urges the United Nations system and Member States urgently to launch an open and inclusive process to identify an enhanced response to antisemitism … consistently rooted in and supportive of human rights. …

QUESTIONS

1. In what respects does the General Comment of the Human Rights Committee appear to go beyond Article 18 itself with respect to notions of religious freedom, and beyond the 1981 Declaration? What implications have Article 18 and the 1981 Declaration for the issue of ‘establishment’?

2. Does the Declaration reach beyond action by the state to cover conduct (that is, to require or prohibit certain conduct) by private (non-state) actors? If so, under what provisions and with respect to what kinds of conduct?

3. How do you assess the value of the reports on antisemitism and islamophobia? What role should Special Rapporteurs play in resolving the controversy over examples of antisemitism?

258 https://jerusalemdeclaration.org/

c. Proselytism

KOKKINAKIS V. GREECE

EUROPEAN COURT OF HUMAN RIGHTS, 1993, SER. A, NO. 260-A (15 DECEMBER 1997)

[Minos Kokkinakis, a Greek national, was born in 1919 into an Orthodox Christian family. In 1936, he became a Jehovah’s Witnesses, a Christian sect originating in the nineteenth century, and known for intense door-todoor canvassing by its members. He was arrested more than 60 times for proselytism, and on several occasions imprisoned for a period of months. In 1986, he and his wife called at the home of a Mrs Kyriakaki to engage her in discussion about religion. Her husband, cantor at a local Orthodox church, informed the police who arrested him. Kokkinakis was convicted under Law No. 1363/1938 of the crime of engaging in proselytism and was sentenced to four months’ imprisonment. The Court of Appeal upheld the conviction. The Court of Cassation dismissed an appeal, rejecting the plea that the law violated Article 13 of the Greek Constitution and hence could not be applied.

Kokkinakis then brought a case against Greece before the European Commission of Human Rights, claiming that his conviction violated provisions of the European Convention on Human Rights. Greece, a party to that Convention, had accepted the jurisdiction of the Commission to hear individual complaints. The Commission found that Greece had violated Article 9 of the Convention. It then referred the case to the European Court of Human Rights, whose jurisdiction Greece had also accepted. (The jurisdiction and work of this Court are examined in Ch. 11A, below).

Section 4 of Law No.1363/1938, as later amended, made ‘engaging in proselytism’ a crime, and further provided:

2. By ‘proselytism’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion, with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety.

The Greek Constitution of 1975 stated in Article 3 that the ‘dominant religion in Greece is that of the Christian Eastern Orthodox Church’. ...

Article 13 of the Constitution provided:

1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs.

2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited.

Several accounts appeared in the opinions of the Greek courts of the interaction between Kokkinakis and Kryiakaki. The trial court stated that the defendant: attempted to proselytise and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful explanations to change her Orthodox Christian beliefs.

The Court of Appeal repeated this account, and added that Kokkinakis began to read out passages from Holy Scripture, which he:

skillfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs. He must consequently be declared guilty of the above-mentioned offence.

One appeal judge dissented, asserting that no evidence showed that Kyriakaki was particularly inexperienced in Orthodox Christian belief or was of particularly low intellect or naïve.

There follow excerpts from the opinion of the European Court:]

[A 1953 judgment of the Greek Supreme Administrative Court had stated, with respect to the meaning of the prohibition of proselytism, that the Constitutional ban:]

means that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution.

18. The Greek courts have held that persons were guilty of proselytism who offered a scholarship for study abroad; ... distributed ‘so-called religious’ books and booklets free to ‘illiterate peasants’ or to ‘ young schoolchildren’; or promised a young seamstress an improvement in her position if she left the Orthodox Church, whose priests were alleged to be ‘exploiters of society’

[The opinion noted that the Jehovah’s Witnesses movement had been present in Greece for about a century, and that its membership in Greece was estimated to be between 25,000 and 70,000. Between 1975 and 1992, 4,400 members had been arrested, 1,233 committed to trial and 208 convicted, some for other offences than proselytism. It then turned to Kokinnakis’s claim that Article 9 of the European Convention had been violated.]

28. The applicant’s complaints mainly concerned a restriction on the exercise of his freedom of religion. The Court will accordingly begin by looking at the issues relating to Article 9, which provides:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

29. The applicant did not only challenge what he claimed to be the wrongful application to him of section 4 of Law no. 1363/1938. His submission concentrated on the broader problem of whether that enactment was compatible with the right enshrined in Article 9 of the Convention He pointed to the logical and legal difficulty of drawing any even remotely clear dividing-line between proselytism and freedom to change one’ s religion or belief and, either alone or in community with others, in public and in private, to manifest it, which encompassed all forms of teaching, publication and preaching between people.

...

Mr Kokkinakis complained, lastly, of the selective application of this Law by the administrative and judicial authorities; it would surpass ‘even the wildest academic hypothesis’ to imagine, for example, the possibility that an Orthodox Christian would be prosecuted for proselytising on behalf of the ‘dominant religion’

...

31. … [F]reedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make

up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

According to Article 9, freedom to manifest one’s religion is not only exercisable in community with others, ‘in public’ and within the circle of those whose faith one shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through ‘teaching’, failing which, moreover, ‘freedom to change [one’s] religion or belief’, enshrined in Article 9, would be likely to remain a dead letter.

33. … [The limitations clause in Article 9(2)] refers only to ‘freedom to manifest one’s religion or belief’. In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. ...

36. The sentence passed by the [criminal court and the court of appeal] amounts to an interference with the exercise of Mr Kokkinakis’s right to ‘freedom to manifest [his] religion or belief ‘. Such an interference is contrary to Article 9 unless it is ‘prescribed by law’, directed at one or more of the legitimate aims in paragraph 2 and ‘necessary in a democratic society’ for achieving them.

[Kokkinakis claimed that the requirement that a prohibition be ‘prescribed by law’ had not been met by Section 4 of the Greek Law; and that the definition of proselytism had no ‘objective’ base, perhaps a deliberate decision ‘to make it possible for any kind of religious conversation or communication to be caught by the provision’. He referred to the risk of extension ‘by the police and often by the courts too of the vague terms of the section, such as ... “indirect attempt” to intrude on the religious beliefs of others.’ And he added that ‘[p]unishing a nonOrthodox Christian even when he was offering “moral support or material assistance” was tantamount to punishing an act that any religion would prescribe and that the Criminal Code required in certain emergencies.’

The Court noted that it was essential to avoid ‘excessive rigidity’ in legislation in order to keep pace with changing circumstances. Many criminal statutes ‘to a greater or lesser extent are vague’. Practice under the proselytism statute and a ‘body of settled national case-law’ interpreting the Law were such as to ‘enable Mr. Kokkinakis to regulate his conduct in the matter’. Hence the Law was ‘prescribed by law’ within the meaning of Article 9(2).

The Court next inquired into whether there had been a ‘legitimate aim’ for the Law within the meaning of Article 9(2).]

43. In the applicant’s submission, religion was part of the ‘constantly renewable flow of human thought’ and it was impossible to conceive of its being excluded from public debate. A fair balance of personal rights made it necessary to accept that others’ thought should be subject to a minimum of influence, otherwise the result would be a ‘strange society of silent animals that [would] think but … not express themselves, that [would] talk but … not communicate, and that [would] exist but … not coexist’.

44. Having regard to the circumstances of the case and the actual terms of the relevant courts’ decisions, the Court considers that the impugned measure was in pursuit of a legitimate aim under Article 9 para. 2, namely the protection of the rights and freedoms of others, relied on by the Government.

[The Court turned to the requirement that a restrictive measure be ‘necessary in a democratic society.’]

45. Mr Kokkinakis did not consider it necessary in a democratic society to prohibit a fellow citizen’s right to speak when he came to discuss religion with his neighbour. He was curious to know how a discourse delivered with conviction and based on holy books common to all Christians could infringe the rights of others. Mrs Kyriakaki was an experienced adult woman with intellectual abilities; it was not possible, without flouting fundamental human rights, to make it a criminal offence for a Jehovah’s Witness to have a conversation with a cantor’s wife. Moreover, the Crete Court of Appeal, although the facts before it were precise and absolutely clear, had not managed to determine the direct or indirect nature of the applicant’s attempt to intrude on the

complainant’s religious beliefs; its reasoning showed that it had convicted the applicant ‘not for something he had done but for what he was’. …

46. The Government … pointed out that if the State remained indifferent to attacks on freedom of religious belief, major unrest would be caused that would probably disturb the social peace.

47. The Court has consistently held that a certain margin of appreciation is to be left to the Contracting States in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate. …

48. First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others.

Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case.

49. The Court notes, however, that in their reasoning the Greek courts established the applicant’s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding.

That being so, it has not been shown that the applicant’s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, ‘necessary in a democratic society … for the protection of the rights and freedoms of others’.

50. In conclusion, there has been a breach of Article 9 of the Convention.

PARTLY CONCURRING OPINION OF JUDGE PETTITI

The expression “proselytism that is not respectable”, which is a criterion used by the Greek courts when applying the Law, is sufficient for the enactment and the case-law applying it to be regarded as contrary to Article 9.

...

... [T]he haziness of the definition leaves too wide a margin of interpretation for determining criminal penalties.

Proselytism is linked to freedom of religion; a believer must be able to communicate his faith and his beliefs in the religious sphere as in the philosophical sphere. Freedom of religion and conscience is a fundamental right and this freedom must be able to be exercised for the benefit of all religions and not for the benefit of a single Church, even if this has traditionally been the established Church or ‘dominant religion’.

Freedom of religion and conscience certainly entails accepting proselytism, even where it is ‘not respectable’. Believers and agnostic philosophers have a right to expound their beliefs, to try to get other people to share them and even to try to convert those whom they are addressing.

The only limits on the exercise of this right are those dictated by respect for the rights of others where there is an attempt to coerce the person into consenting or to use manipulative techniques.

The other types of unacceptable behaviour such as brainwashing, breaches of labour law, endangering of public health and incitement to immorality, which are found in the practices of certain pseudo-religious groups must be punished in positive law as ordinary criminal offences. Proselytism cannot be forbidden under cover of punishing such activities.

The wording adopted by the majority of the Court in finding a breach, namely that the applicant’s conviction was not justified in the circumstances of the case, leaves too much room for a repressive interpretation by the Greek courts in the future, whereas public prosecution must likewise be monitored. In my view, it would have been possible to define impropriety, coercion and duress more clearly and to describe more satisfactorily, in the abstract, the full scope of religious freedom and bearing witness.

Let us look now at the facts of the case. On the one hand, we have a militant Jehovah’s Witness, a hardbitten adept of proselytism, a specialist in conversion, a martyr of the criminal courts whose earlier convictions have served only to harden him in his militancy, and, on the other hand, the ideal victim, a naïve woman, the wife of a cantor in the Orthodox Church (if he manages to convert her, what a triumph!). He swoops on her, trumpets that he has good news for her (the play on words is obvious, but no doubt not to her), manages to get himself let in and, as an experienced commercial traveller and cunning purveyor of a faith he wants to spread, expounds to her his intellectual wares cunningly wrapped up in a mantle of universal peace and radiant happiness. Who, indeed, would not like peace and happiness? But is this the mere exposition of Mr Kokkinakis’s beliefs or is it not rather an attempt to beguile the simple soul of the cantor’s wife? Does the Convention afford its protection to such undertakings? Certainly not.

... I should certainly be inclined to recommend the Government to give instructions that prosecutions should be avoided where harmless conversations are involved, but not in the case of systematic, persistent campaigns entailing actions bordering on unlawful entry.

That having been said, I do not consider in any way that there has been a breach of the Convention.

Comments on Kokkinakis

Kokkinakis remains the landmark judgment in this area for the European human rights regime. But it has been widely criticized, and its lack of clarity is considered by many commentators to have facilitated the complex and confusing jurisprudence followed by the European Court of Human Rights in the cases considered later in this chapter. Consider these comments:

Malcolm Evans, ‘The Freedom of Religion or Belief in the European Court of Human Rights since the Kokkinakis case Or “Quoting Kokkinakis”’, in Jeroen Temperman, T. Jeremy Gunn, and Malcolm D. Evans (eds.), The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis (2019) 33:

… In Eweida v. UK [2013] it was said that ‘[r]eligious freedom is primarily a matter of individual thought and conscience. …

Six months later, in Sindicatul “Păstorul cel Bun” v. Romania [2013] the Grand Chamber said that ‘[t]he autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords. It directly concerns not only the organisation of these communities as such but also the effective enjoyment of the right to freedom of religion by all their active members. Were the organisational life of the community not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable’.

Whereas the quote from Eweida emphasises the individual nature of the right, the Sindicatul case highlights its collective nature. Both draw on the Kokkinakis statement; Eweida quoting it expressly, Sindicatul by using its language, although not directly acknowledging it. This tension lies at the heart of much of the controversy surrounding

the practical application of Article 9: is it focussed on the individual, the religious or belief communities or the broader community as a whole? Is it about the individual versus the community? Or is it about the individual in community? And if so, which community? Both cases raised precisely such questions. The problem with the Kokkinakis approach is that it can support outcomes based on any of these approaches – or on none.

Brett G. Scharffs, ‘Kokkinakis and the Narratives of Proper and Improper Proselytizing’, in ibid, 153:

Two things are worth noting. First, the Court imposes a distinction between “proper” proselyting and “improper” proselytism upon the Greek statute and Constitution, a distinction that does not exist in these laws. This has the effect of preserving a criminal law that is overbroad, vague, and leaves too much discretion to prosecutors and judges, while holding that the application of the law in this case was a violation of Article 9.

Second, the Court compounds this imposition by failing to define clearly the difference between what is proper and improper. In the various accounts of the facts of the case, we see wildly diverging versions of what actually happened as well as of the significance of those facts. Thus, the case stands as a cautionary tale not only of the hazards of judicial storytelling, but also of the power of judicial law-making. It is not surprising that with such a shaky foundation, the Court prepares the way for subsequent jurisprudence on proselytizing that is unstable, unprincipled, and inconsistent.

MAKAU MUTUA, HUMAN RIGHTS, RELIGION, AND PROSELYTISM HUMAN RIGHTS: A POLITICAL AND CULTURAL CRITIQUE (2002) 94

... With the African theater as the basic laboratory, I intend to unpack the meaning of religious freedom at the point of contact between the messianic faiths and African religions and illustrate how that meeting resulted in a phenomenon akin to cultural genocide. The main purpose here is not merely to defend forms of religion or belief but rather to problematize the concept of the right to the free exercise of messianic faiths, which includes the right to proselytize in the marketplace of religions. In societies such as those in Africa where religion is woven into virtually every aspect of life, its delegitimation can eventually lead to the collapse of social norms and cultural identities. The result, as has been the case in most of sub-Saharan Africa, is a culturally disconnected people, neither themselves nor the outsiders in Europe, North America, and the Arab world that they seek to imitate. In other words, I argue that imperial religions have necessarily violated the individual conscience and the communal expressions of Africans and their communities by subverting African religions. In so doing, they have robbed Africans of essential elements of their humanity ... .

Since the right to religious freedom includes the right to be left alone to choose freely whether to believe and what to believe in the rights regime by requiring that African religions compete in the marketplace of ideas incorrectly assumes a level playing field. The rights corpus not only forcibly imposes on African religions the obligation to compete a task for which as nonproselytizing, noncompetitive creeds they are not historically fashioned but also protects evangelizing religions in their march toward universalization. In the context of religious freedom, the privileging by the rights regime of the competition of ideas over the right against cultural invasion, in a skewed contest, amounts to condoning the dismantling of African religions.

I also argue that the playing field, the one crucial and necessary ingredient in a fair fight, is heavily weighted against Africans. Messianic religions have been forcibly imposed or their introduction was accomplished as part of the cultural package borne by colonialism. Missionaries did not simply offer Jesus Christ as the savior of benighted souls, his salvation was frequently a precondition for services in education and health, which were quite often the exclusive domain of the Church and the colonial state... . [I]n most cases, the embrace of indigenous societies by the European imperial powers was so violent and total that conformity was the only immediate option….

... A discussion about limitations on religious rights at first blush appears to frustrate some of the major ideals of the human rights movement. It raises the question about the tension between the restriction of the right to evangelize or advocate a point of view and one of the central ideals of the human rights movement, the promotion of diversity and the right to advocate ideas or creeds. An exploration of the manner in which the

human rights corpus ought to view religious rights whether to further limit or to expand the protections they currently enjoy raises a fundamental tension: how does a body of principles that promotes diversity and difference protect the establishment and manifestation of religious orders that seek to destroy difference and forcibly impose an orthodoxy in Africa as both Christianity and Islam, the two major proselytizing religions, attempted, and in many cases successfully did? Precisely because of the ethos of universalization common to both, the messianic faiths sought to eradicate, with the help of the state, all other forms of religious expression and belief and close off any avenues through which other competing faiths could be introduced or sustained ...

.

The challenge for the human rights movement is to move beyond the singular obsession with wrongs committed directly by the state although it remains the most important obligee of the discourse and confront nonstate actors in order to contain and control human rights violations in the private sphere. To do so, the movement has to take on powerful private institutions in the private realm, including established religion. It is my argument that although religious human rights must be defined, secured, and protected, there is a correlative duty on the part of religions to respect the human rights of nonbelievers and adherents of other religions or faiths and not to seek their coerced conversion either directly or through the manipulation and destruction of other cultures.

... The two most geographically diverse religions Christianity and Islam are also the most imperial; they are proselytizing and universalist in their attempts to convert into their faith the entire human race. Although these religions are not spread through physical violence today, they have historically been forcibly introduced. … But central to them is the belief in the racial superiority of the proselytizers ... . It does not require a profound knowledge of history to prove that both Arab and European perceptions of Africa have been decidedly racist over the centuries ... .

... Although human rights law amply protects the right to proselytize through the principles of free speech, assembly, and association, the pecking order of rights problematizes the right to evangelize where the result is the destruction of other cultures or the closure of avenues for other religions. It is my argument that the most fundamental of all human rights is that of self-determination and that no other right overrides it. Without this fundamental group or individual right, no other human right could be secured, since the group would be unable to determine for its individual members under what political, social, cultural, economic, and legal order they would live. Any right which directly conflicts with this right ought to be void to the extent of that conflict.

... Although many of the rights enumerated in human rights law attach to individuals, they only make sense in a collective, social perspective. This is the case because the creation or development of a culture or a religion are societal, not individual, endeavors. I make this point to underline the importance of culture or religion to individuals and groups. An individual’s morals, attitudes toward life and death, and identity come from this collective construction of reality through history.

No one culture or religion is sovereign in relationship to any other culture or religion. Proper human rights ought to assume that all cultures are equal. This view rejects the notion that there is a hierarchy of cultures or religions; that some cultures are superior to others even though they may more technologically advanced. Belief in the contrary has led to military invasions to “civilize,” colonize, and enslave, as was the case with Christianity in Africa. Cultures, however, have always interacted throughout history; there are no pure cultures, as such, although many traditions retain their distinctive personality. In many cases, the voluntary, unforced commingling of cultures has led to a more vital and creative existence. Several lessons can be drawn from this premise. The human rights movement should encourage the crossbreeding of cultures and tolerance for diversity. But it should frown upon homogenization and the imposition of uniformity.

Perhaps there is nothing that can be done today to reverse the negative effects of forced or coerced religious proselytization during the era of colonialism in Africa. Nor is it possible to reclaim wholly the African past as though history has stood still. This does not mean, however, that we should simply forget the past and go on as if nothing happened. The anguish and deprivation caused by that historical experience is with me and millions of other Africans today. We bear the marks of that terrible period. For those Africans who choose not to be Christians or Muslims, the past is not really an option: it was so effectively destroyed and delegitimized that it is practically impossible to retrieve as a coherent scheme of values. It is this loss that I mourn and for which I

blame Christianity and Islam. The human rights corpus should outlaw those forms of proselytization used in Africa, because their purpose and effect have been the dehumanization of an entire race of people. It could do so by elaborating a treaty that addresses religious human rights but provides for the protection and mechanisms of redress for forms of proselytization that seek to unfairly assimilate or impose dominant cultures on indigenous religions.

Proselytism in India

In 1999, during a visit to India, Pope John Paul II stated that ‘[r]eligious freedom constitutes the very heart of human rights. … Its inviolability is such that individuals must be recognized as having the right even to change their religion, if their conscience so demands.’ Allesandra Stanley, in ‘Pope Tells India His Church Has Right to Evangelize’, New York Times, 8 November 1999, reported that this was:

… an argument that many religious leaders in India accept only with difficulty. Christian conversions are at the heart of a political and religious dispute that has made the … pope’s visit a tense one. Christian proselytizing is fuel for Muslim fundamentalists, but it is also a source of uneasiness between the pope and some of his more moderate and likeminded religious peers.

MUKESH KUMAR AND GARIMA YADAV, ANXIETIES OF THE DOMINANT: LEGAL, SOCIAL, AND RELIGIOUS IN THE POLITICS OF RELIGIOUS CONVERSION IN INDIA

11 OXFORD J. L. & RELIG. (2022) 4

Currently, 10 out of 28 Indian states and 8 union territories have anti-conversion laws that prohibit religious conversions on grounds of marriage, force, allurement, and fraud. The present-day anti-conversion laws identify the decision to change one’s faith as a criminal offence until and unless prior permission is sought from the state asserting that:

No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another, by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such conversion.

All the recent anti-conversion laws are similar in their content, structure, and wording. … These laws are held by many as contradicting constitutional values of the liberty of thought, expression, belief, and faith … . The definition of allurement, force, and fraud in anti-conversion laws is ambiguous that gives an edge to the police and self-styled Hindu-vigilante groups to interpret any public activity of non- Hindus, including the constitutionally allowed legitimate methods of proselytizing such as peaceful public preaching, as per their political convenience. Similarly, the broad and vague definition of force impinges on all meaningful religious interactions between individuals of different denominations. Many charitable acts which are fundamental part of religions like Islam and Christianity may also be framed as tactics of religious conversion. Education offered by missionary institutions to poor children and orphans is nowadays interpreted as a sinister design of conversion.

Presently, Hindu vigilante groups encouraged and re-energized by these laws regularly attack individuals belonging to the minority, target their worship spaces, and harass Muslim and Christian clerics under the pretext of exposing ploys of ‘unlawful conversions’. …

Conclusion

… [R]eligious conversion is prominent in public debates because it simultaneously intersects the imagined boundaries of nation, caste, religion, and gender. Consequently, any associated legal change concerning religious conversion brings discussions on nationality, identity, community, belonging, individual rights, and the issue of freedom face to face with one another.

…

Religious conversion is not a monolithic process. Scholars have shown that various factors direct an individual towards changing one’s religious belief and identification. Historically, if one thinks from the perspective of converts, religious conversion has also served as terrain of multiple possibilities of social mobility and emancipation from oppression. However, Hindu fundamentalists frame all religious conversions as achieved by exerting political pressure externally. Making constitutional provisions for religious conversion through ambiguously defined terms such as force, fraud, and allurement in response to some bogus theories of Hindu right activists is also an instance of an impending conservative pressure on the legal fabrics of Indian democracy.

Although the legality of anti-conversion laws, especially regarding interfaith marriages, is questioned from time to time by the Supreme Court, individuals, particularly Muslim youths, undergo suppression by the state. Religious conversion is totally banned under the new legal provisions in various Indian states. Any violation of these provisions is met with hostility by police forces and Hindu vigilante groups. Overall, the legality of religious conversion politics yields political benefits because it can effectively tie itself with the discourse of nation, religion, community, identity, and multiple other narratives of public significance to perpetually maintain fissures between religions to reap benefits from such divides.

QUESTIONS

1. How do you assess the Kokkinakis opinion? Do you find justification for any restriction on proselytizing other than those related to coercion, undue imposition on the listener, and similar matters?

2. How do you assess Mutua’s views? Can they be limited to matters or religion, or would his arguments apply equally to other attributes of a culture, such as discrimination, or extreme forms of punishment, or authoritarian rule by priests or by elders of a community? How would you seek to resolve the tensions that Mutua underscores, such as through arguments in favour of cultural variety and survival as opposed to arguments for universal norms?

3. Dress and Symbols, Migration and Multiculturalism

The larger flows of immigrants in recent decades from developing countries to Europe and the United States have led to more complex and sometimes abrasive cultural mixes. Migrants carry cultural and religious beliefs and practices with them; many immigrants continue to adhere to those beliefs and seek to continue the practices accompanying them, as well as the beliefs’ manifestations in routine daily behaviour. Sometimes, as in the case of female genital cutting, the practices grow out of deeply rooted culture and traditions. Sometimes, as in the issue of headscarves discussed below, they have at least in part a religious foundation. In either case, in the increasingly multicultural states of the developed world, newcomers’ practices and routine behaviour one or another form of dress is frequently at issue stir discomfort, concern and even intense hostility in the host state. That concern and hostility will often continue after the immigrants or their children have become citizens. The issue is starkly posed: whether the immigrants or new citizens should be allowed to continue their practices, or whether they should be required to follow laws and practices of the developed country that effectively require their abolition. Severe sanctions, including expulsion from schools and criminal proceedings, may await those who refuse to surrender their beliefs and ways.

Of course, such conflicts raise serious human rights issues. The opening materials concern immigrant communities, while the later materials examine similar issues that arise in national settings among groups of citizens. The main focus is on Europe and the treatment of Muslims. In a 2017 report, the Pew Research Center noted that, from mid-2010 to mid-2016 alone, the share of Muslims in Europe rose more than 1 percentage point, from 3.8 percent to 4.9 percent (from 19.5 million to 25.8 million). By 2050, the share of the continent’s population that is Muslim could more than double, rising to 11.2 percent or more, depending on how much migration is allowed into Europe.

In a 2021 report (UN Doc. A/HRC/46/30, para. 26), the UN Special Rapporteur on freedom of religion or belief noted that:

Despite the fact that some women regard it as integral to their faith or identity, at least 11 States in Europe, Africa and South Asia impose public restrictions or bans on Muslim head coverings – predominantly worn by women – on the grounds that this type of religious dress is incompatible with a secular public space, violates the rights of Muslim women or poses a security risk. Other States reportedly permit certain institutions (e.g., schools, places of work or the courts) to exercise discretion on whether to permit Muslim dress.

Although the following analysis was written some years ago, it remains highly relevant and lays the foundation for the court cases that follow, which involve disputes arising out of the large societal changes that the author describes.

TIMOTHY SAVAGE, EUROPE AND ISLAM: CRESCENT WAXING, CULTURES CLASHING

27 WASH. Q. (2004) 25

… As the MENA [Middle East and North Africa] population doubles in the next three decades and Europe’s shrinks, increased migratory flows from south to north appear unavoidable a trend augmented by Europe’s graying population, as opposed to the youthful MENA average.

The growing Muslim presence in Europe has tended to cluster geographically within individual states, particularly in industrialized, urban areas within clearly defined, if not self-encapsulated, poorer neighborhoods such as Berlin’s Kreuzberg district, London’s Tower Hamlets, and the banlieues (suburbs) of major French cities, further augmenting its visibility and impact yet circumscribing day-to-day contact with the general population ...

The nature of the Muslim presence in Europe is also changing. No longer “temporary guest workers,” Muslims are now a permanent part of western European national landscapes, as they have been for centuries in southeastern Europe. The institutionalization of Islam in Europe has begun, as has a “re-Islamization” of Muslims in Europe.

... Like European Christians and Jews, European Muslims are not a monolithic group. Nonetheless, Muslims increasingly identify first with Islam rather than with either their family’s country of origin or the European country in which they now reside. Moreover, this phenomenon is significantly more pronounced among younger Muslims.

... The current generation is also modernizing and acculturating to aspects of contemporary European society at a faster rate than the first waves of Muslim immigrants did. Younger Muslims are adopting attributes of the European societies in which they were born and raised, such as language; socialization through schooling; and, in many cases, some of the secular perspectives of the country in which they reside. Yet, generally they do not feel part of the larger society nor that they have a stake in it. Conversely, even though they may be thirdgeneration citizens, they often are not viewed as fellow citizens by the general public but are still identified as foreigners and immigrants instead.

Despite these trends in citizenship, younger Muslims are resisting assimilation into secular European societies even more steadfastly than the older generation did. Europe’s Muslims, including the younger generation, are willing to integrate and respect national norms and institutions as long as they can, at the same time, maintain their distinct Islamic identity and practices. They fear that assimilation, that is, total immersion into European society, will strip them of this identity. Yet, this is the price many Muslims increasingly see European governments and publics demanding: to have Europe become a melting pot without accommodation by or modifications of the existing culture. Studies in France and Germany find that second- and particularly third-

generation Muslims are less integrated into European societies than their parents or grandparents were. The recent headscarf affairs in France and Germany underscore and further exacerbate this basic clash.

Perceived discrimination in European societies affecting employment, education, housing, and religious practices is compelling many second- and third-generation Muslims to embrace Islam as their badge of identity. Indeed, the unemployment rate among Muslims is generally double that of non-Muslims, and it is worse than that of non-Muslim immigrants. Educational achievement and skill levels are relatively low, participation by Muslim women in the workforce is minimal, opportunities for advancement are limited, and biases against Muslims are strong. Such factors contribute to the isolation and self-encapsulation of Muslim communities in Europe ... .

The rapidly growing Muslim populations seem to be overwhelming the ability of European governments to draw the lines of tolerance rationally, consistently, and convincingly. Europeans see Muslims as a direct challenge to the collective identity, traditional values, and public policies of their societies, as demonstrated by the heated controversies over the hijab [scarf], Muslim food (halal), the construction of mosques, the teaching of Islam in schools, and Muslim burial rites. This attitude is also reflected in intense debates over women’s rights, church-state relations, and Islam’s compatibility with democracy. Politicians, pundits, and ordinary citizens are all seized with the “Islamic challenge.”

... The threat is framed in terms of security (terrorism) and economics (jobs); yet, the core issue is identity and the perceived cultural threat Islam poses to the European way of life. Europeans have even coined a name for it: Islamophobia. Conversely, this tendency to see Muslims as a monolith has its reverse image in Muslim allegiance to the umma, which transcends other loyalties; tends to reinforce the “we/them” perspective; and is part of the reason why Muslims resist assimilation the total loss of identity-related indicators of existing differences from European societies and insist on integration a reconstituted identity that stresses remaining differences or, in some cases, recommunalization a physical presence in Europe but no accommodation with European society ... .

[T]he challenge for Europe seems more daunting [than that of the United States with respect to racial hostility and tolerance] because it involves not only integration and tolerance but also redefining both parties’ identities. Each side will have to change and move toward the other. Europe’s Muslims will need to accept the norms, customs, and cultures of the states in which they live and reject efforts to establish a parallel society, while the general European population will need to broaden its horizons to embrace and accommodate diversity, accepting integration and not just complete assimilation as a valid relationship to society.

... For their part, Muslims in Europe, who must confront poverty, bigotry, de facto segregation, and limited social mobility, are likely to find it difficult to embrace Europe’s liberal democratic views on gender equality; sexual liberalization; and the principles of compromise, egalitarianism, and identification with the state. These are all issues that challenge the traditional views not only of Muslims but also of individuals with an Arab, Turkish, or South Asian heritage, as the vast majority of Europe’s Muslims are. These cultural backgrounds have not included the Enlightenment as a central pillar, and the idea of a secular society is for the most part alien. Moreover, as Mustafa Malik notes, in these societies, “[Resistance] to liberalism was heightened by hatred for European colonialists, who represented liberal values.” Lack of organization and political standing, diversity of views and interests, economic weakness, and the absence of clear leadership pose major complicating hurdles, all of which Europe’s Muslims will need to address if they are to contribute their part to Europe’s transformation.

... Although the situation in Europe is not quite there, the tipping point may be closer than is generally realized. As intolerance toward Muslim communities grows in Europe, European Muslims are growing more selfconfident but also more dissatisfied, particularly as Europe’s economy continues to sputter. The percentage of Muslims in France is rapidly approaching that of African-Americans in the United States in 1950 (10 percent), and the percentage of Muslims in Europe as a whole will pass that benchmark within the next decade... .

... Conversely, however, a success in dealing with the building clash of cultures and identities, which results in a shift of both Muslim and non-Muslim European mind-sets, and crafts a societal framework that encourages integration and respects individual as well as national identities would negate Huntington’s thesis of the

inevitable incompatibility of Islam and the West. It would require change in European society, to be sure. As with all change, there would be winners and losers. Yet, success holds out the hope of reinvigorating and redefining Europe, proffering a possible corrective to its projected political, economic, and demographic decline as well as moving European integration to a new level and giving it new meaning.

* * *

Bans on headscarves have now been considered by a range of international bodies, and the materials that follow reproduce some of the key decisions. A useful starting point is the judgment of the European Court of Human Rights in Dahlab v. Switzerland, Application No. 42393/98 (2001). The applicant, a Catholic woman, was a primary school teacher in the secular public school system in Geneva. She converted to Islam and soon began to ‘observe a precept laid down in the Koran whereby women were enjoined to draw their veils over themselves in the presence of men.’ She refused the request of the Director General of Primary Education to stop wearing a headscarf to class, and was soon dismissed. She was not given relief by the Swiss authorities, and thus brought an action before the European Court on the ground that the prohibition of the headscarf infringed her freedom to manifest her religion pursuant to Article 9 of the European Convention. The Court agreed with the conclusions of the Swiss administrative and judicial authorities, and declared the application inadmissible. It stated in part:

The Court accepts that it is very difficult to assess the impact that a powerful external symbol such as the wearing of a headscarf may have on the freedom of conscience and religion of very young children [between 4 and 8] ... . [T]he wearing of a headscarf might have some kind of proselytizing effect, seeing that it appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality. It therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination that all teachers in a democratic society must convey to their pupils ... . [H]aving regard, above all, to the tender age of the children for whom the applicant was responsible as a representative of the State, the Geneva authorities did not exceed their margin of appreciation and … the measure they took was therefore not unreasonable.

In the year before the Grand Chamber decision, a French law came into force effectively banning from state primary and secondary schools the headscarf worn by many Muslim girls as well as ‘conspicuous’, or ‘overtly manifest’, clothing or symbols of other religions such as large crosses for Christians and large skullcaps for Jewish boys. Other states in Europe allowed schools to prohibit headscarves in certain cases. These developments across the European landscape were understood by the court when it issued the following judgment:

LEYLA ŞAHIN V. TURKEY

EUROPEAN COURT OF HUMAN RIGHTS, GRAND CHAMBER, APPLICATION NO. 44774/98 (10 NOVEMBER 2005)

[The applicant, a Turkish citizen, came from a traditional family of practising Muslims, and considered it her religious duty to wear the Islamic headscarf. She did so during her four years studying medicine in a Turkish university. She then transferred to Istanbul University to continue her studies. In a series of episodes beginning in 1998 she was censured by university authorities for refusing to comply with university circulars based on legislation banning students wearing headscarves from lectures and courses. After being denied enrolment and admission to lectures, she sought relief from Turkish courts, but was unsuccessful. Ultimately, the applicant abandoned her studies in Turkey and pursued her medical education at Vienna University. After failing to secure judicial relief in Turkey, she initiated proceedings against Turkey under the European Convention on Human Rights. In a 2004 judgment, a Chamber of the European Court of Human Rights held unanimously that there had been no violation of the Convention. The applicant’s request that the case be referred to the Court’s Grand Chamber was accepted. In its 2005 judgment, the Grand Chamber also ruled against the applicant.]

30. The Turkish Republic was founded on the principle that the State should be secular (laik). …

32. The defining feature of the Republican ideal was the presence of women in public life and their active participation in society. Consequently, the ideas that women should be freed from religious constraints and that society should be modernised had a common origin. … [W]omen obtained equal political rights with men.

35. In Turkey wearing the Islamic headscarf to school and university is a recent phenomenon which only really began to emerge in the 1980s … . Those in favour of the headscarf see wearing it as a duty and/or a form of expression linked to religious identity. However, the supporters of secularism … see the Islamic headscarf as a symbol of a political Islam ...

[In the Turkish Constitutional Court’s opinion upholding the university’s position, the judges stated that secularism had achieved so important a position among constitutional values because of the country’s historical experience and the particularities of Islam compared to other religions; secularism was an essential condition for democracy and acted as a guarantor of freedom of religion and of equality before the law. Students must be allowed to work in a tolerant atmosphere without being deflected from their goals by signs of religious affiliation such as the headscarf.

The ECtHR opinion included a comparative survey about laws about headscarves across different European countries. The survey indicated that state legislation varied on many details for example, how, if at all, the headscarf was regulated, and the level of school/university that was covered by any regulation.]

Alleged violation of Article 9 of the convention

70. The applicant submitted that the ban on wearing the Islamic headscarf in institutions of higher education constituted an unjustified interference with her right to freedom of religion, in particular, her right to manifest her religion. She relied on Article 9 of the Convention … .

…

104. The Court reiterates that as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” … .

105. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. ... .

106. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. …

107. The Court … also considers that the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed ...

109. Where questions concerning the relationship between State and religions are at stake, on which opinion in a democratic society may reasonably differ widely, the role of the national decision-making body must be given special importance. This will notably be the case when it comes to regulating the wearing of religious symbols in educational institutions, especially in view of the diversity of the approaches taken by national authorities on the issue. It is not possible to discern throughout Europe a uniform conception of the significance of religion in society and the meaning or impact of the public expression of a religious belief will differ according to time and context. Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and to maintain public order. …

110. This margin of appreciation goes hand in hand with a European supervision embracing both the law and the decisions applying it. The Court’s task is to determine whether the measures taken at national level were justified in principle and proportionate.

115. After examining the parties’ arguments, the Grand Chamber sees no good reason to depart from the approach taken by the Chamber [in its 2004 judgment]:

... The Court ... notes the emphasis placed in the Turkish constitutional system on the protection of the rights of women … .

... In addition, like the Constitutional Court ..., the Court considers that, when examining the question of the Islamic headscarf in the Turkish context, there must be borne in mind the impact which wearing such a symbol, which is presented or perceived as a compulsory religious duty, may have on those who choose not to wear it. As has already been noted, the issues at stake include the protection of the “rights and freedoms of others” and the “maintenance of public order” … . Imposing limitations on freedom in this sphere may, therefore, be regarded as meeting a pressing social need by seeking to achieve those two legitimate aims, especially since, as the Turkish courts stated ..., this religious symbol has taken on political significance in Turkey in recent years.

... The Court does not lose sight of the fact that there are extremist political movements in Turkey which seek to impose on society as a whole their religious symbols and conception of a society founded on religious precepts ... It has previously said that each Contracting State may, in accordance with the Convention provisions, take a stance against such political movements, based on its historical experience. The regulations concerned have to be viewed in that context and constitute a measure intended to achieve the legitimate aims referred to above and thereby to preserve pluralism in the university.

117. The Court must now determine whether in the instant case there was a reasonable relationship of proportionality between the means employed and the legitimate objectives pursued by the interference.

118. Like the Chamber ..., the Grand Chamber notes at the outset that it is common ground that practising Muslim students in Turkish universities are free, within the limits imposed by educational organisational constraints, to manifest their religion in accordance with habitual forms of Muslim observance. In addition, the resolution adopted by Istanbul University on 9 July 1998 shows that various other forms of religious attire are also forbidden on the university premises.

...

121. ... By reason of their direct and continuous contact with the education community, the university authorities are in principle better placed than an international court to evaluate local needs and conditions or the requirements of a particular course. …

122. In the light of the foregoing and having regard to the Contracting States’ margin of appreciation in this sphere, the Court finds that the interference in issue was justified in principle and proportionate to the aim pursued.

123. Consequently, there has been no breach of Article 9 of the Convention.

II. Alleged violation of Article 2 of Protocol No. 1

[The Applicant also argued that Article 2 of Protocol No. 1 of the European Convention should be interpreted to uphold her right to wear a headscarf while attending the university. That article provides:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.]

The Grand Chamber relied heavily on its reasoning with respect to freedom of religion in concluding that there had been no violation of Article 2 of Protocol No. 1….

DISSENTING OPINION OF JUDGE TULKENS

2. … Underlying the majority’s approach is the margin of appreciation which the national authorities are recognised as possessing and which reflects, inter alia, the notion that they are “better placed” to decide how best to discharge their Convention obligations in what is a sensitive area. The Court’s jurisdiction is, of course, subsidiary and its role is not to impose uniform solutions, especially “with regard to establishment of the delicate relations between the Churches and the State”

3. I would perhaps have been able to follow the margin-of-appreciation approach had not two factors drastically reduced its relevance in the instant case. The first concerns the argument the majority use to justify the width of the margin, namely … the lack of a European consensus in this sphere. The comparative-law materials do not allow of such a conclusion, as in none of the member States has the ban on wearing religious symbols extended to university education … . The second factor concerns the European supervision that must accompany the margin of appreciation ... . [O]ther than in connection with Turkey’s specific historical background, European supervision seems quite simply to be absent from the judgment. …

4. On what grounds was the interference with the applicant’s right to freedom of religion through the ban on wearing the headscarf based? In the present case, … [there were] two main arguments: secularism and equality... . In a democratic society, I believe that it is necessary to seek to harmonise the principles of secularism, equality and liberty, not to weigh one against the other.

...

7. ... The majority … consider that wearing the headscarf contravenes the principle of secularism. …

… [A] generalised assessment of that type gives rise to at least three difficulties. Firstly, the judgment does not address the applicant’s argument which the Government did not dispute that she had no intention of calling the principle of secularism … into doubt. Secondly, there is no evidence to show that the applicant, through her attitude, conduct or acts, contravened that principle ... . Lastly, the judgment makes no distinction between teachers and students, [contrary to] Dahlab v. Switzerland … which concerned a teacher … . [T]he position of pupils and students seems to me to be different.

8. Freedom to manifest a religion entails everyone being allowed to exercise that right, whether individually or collectively, in public or in private, subject to the dual condition that they do not infringe the rights and freedoms of others and do not prejudice public order.

As regards the first condition, this could have been satisfied if the headscarf the applicant wore as a religious symbol had been ostentatious or aggressive or was used to exert pressure, to provoke a reaction, to proselytise or to spread propaganda and undermined or was liable to undermine the convictions of others. However, the Government did not argue that this was the case and there was no evidence before the Court to suggest that Ms Şahin had any such intention. As to the second condition, it has been neither suggested nor demonstrated that there was any disruption in teaching or in everyday life at the University ... .

9. ... [T]he possible effect which wearing the headscarf, which is presented as a symbol, may have on those who do not wear it does not appear to me, in the light of the Court’s case-law, to satisfy the requirement of a pressing social need ... .

10. In fact, it is the threat posed by “extremist political movements” seeking to “impose on society as a whole their religious symbols and conception of a society founded on religious precepts” which, in the Court’s view, serves to justify the regulations in issue, which constitute “a measure intended ... to preserve pluralism in the university” ... .

While everyone agrees on the need to prevent radical Islamism, a serious objection may nevertheless be made to such reasoning. Merely wearing the headscarf cannot be associated with fundamentalism and it is vital to

distinguish between those who wear the headscarf and “extremists” who seek to impose the headscarf as they do other religious symbols. Not all women who wear the headscarf are fundamentalists and there is nothing to suggest that the applicant held fundamentalist views ... . [T]he judgment fails to provide any concrete example of the type of pressure concerned ... .

11. Turning to equality, the majority focus on the protection of women’s rights and the principle of sexual equality ... . By converse implication, wearing the headscarf is considered synonymous with the alienation of women. The ban on wearing the headscarf is therefore seen as promoting equality between men and women. However, what, in fact, is the connection between the ban and sexual equality? The judgment does not say ... . [W]earing the headscarf has no single meaning; it is a practise that is engaged in for a variety of reasons. It does not necessarily symbolise the submission of women to men and there are those who maintain that, in certain cases, it can even be a means of emancipating women. What is lacking in this debate is the opinion of women, both those who wear the headscarf and those who choose not to.

12. … The applicant, … [said] that she wore the headscarf of her own free will. In this connection, I fail to see how the principle of sexual equality can justify prohibiting a woman from following a practice which, in the absence of proof to the contrary, she must be taken to have freely adopted ... .

13. ... In these circumstances, there has been a violation of the applicant’s right to freedom of religion, as guaranteed by the Convention.

[The dissenting opinion also disagreed on several grounds with the majority’s disposition of applicant’s claim based on Article 2 of Protocol No. 1.]

In 2008, under the leadership of Prime Minister Recep Tayyip Erdoğan and his Justice and Development Party (the Adalet ve Kalkınma Partisi), Turkey’s Parliament passed a constitutional amendment, by an overwhelming majority, allowing women to wear headscarves on university campuses. The amendment was challenged in a case brought before the Constitutional Court. The Court invalidated the measure reasoning, in part, that it violated the Turkish Constitution’s foundational commitment to secularism. In 2013 the ban was lifted, with some exceptions for the military, police force and judiciary. At the 2023 election both the re-elected government and the opposition announced strong support for official legal steps to enshrine women’s right to wear Islamic headscarves.

a. Headscarves in France

The background to the developments traced below is well captured by this analysis by Roger Cohen, in ‘An Embattled Public Servant in a Fractured France’, New York Times (1 January 2021):

France is in theory a nondiscriminatory society where the state upholds strict religious neutrality and people are free to believe, or not, in any God they wish. It is a nation, in its self image, that through education dissolves differences of faith and ethnicity in a shared commitment to the rights and responsibilities of French citizenship.

This model, known as laïcité, often inadequately translated as secularism, is embraced by a majority of French people. They or their forebears became French in this way. No politician here would utter the words “In God we trust.” The Roman Catholic Church was removed more than a century ago from French public life. The country’s lay model supplants any deity.

But, in a country with an uneasy relationship to Islam, laïcité is also contested as the shield behind which France discriminates against its large Muslim population and avoids confronting its prejudices. …

France enacted a national law in 2004 categorically prohibiting any student attending an elementary or secondary state school from wearing ‘conspicuous’ religious garb and symbols, including the headscarf.259 Previously, French law had provided state schools with discretion to prohibit Muslim girls from wearing the headscarf under certain conditions. Those conditions included a determination by school authorities that ‘inherently, in the circumstances in which [religious signs] are worn, individually or collectively, or conspicuously or as a means of protest, might constitute a form of pressure, provocation, proselytism or propaganda, undermine the dignity or freedom of the pupil or other members of the educational community, compromise their health or safety, disrupt the conduct of teaching activities and the educational role of the teachers, or, lastly, interfere with order in the school or the normal functioning of the public service.’ The law also designated local disciplinary authorities to determine whether an individual’s breach of a dress code would result in suspension from school.

In 2008, a chamber of the European Court of Human Rights issued a judgment addressing the pre-2004 French legal regime. The case, Dogru v. France (Application No. 27058/05), involved an 11-year-old Muslim girl who was expelled from a state school due to her failure to obey a school rule prohibiting headscarves in physical education classes. The Court applied the Grand Chamber’s framework in Sahin and concluded that the school’s actions were consistent with the Convention:

73. … [T]he Court considers that the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety is not unreasonable ... .

74. The Court also notes that the disciplinary proceedings against the applicant fully satisfied the duty to undertake a balancing exercise of the various interests at stake ... . [T]he authorities concerned made many unsuccessful attempts over a long period of time to enter into dialogue with the applicant and a period of reflection was granted her and subsequently extended. Furthermore, the ban was limited to the physical education class, so cannot be regarded as a ban in the strict sense of the term. Moreover, … these events had led to a general atmosphere of tension within the school ... .

76. The Court considers … that the penalty of expulsion does not appear disproportionate, and notes that the applicant was able to continue her schooling by correspondence classes ... .

Following the judgment by the ECtHR, France enacted new legislation which came into force in 2011. The law specifically addresses full-face coverings such as burqas and niqabs.260 Women are forbidden from wearing such garments in public spaces, defined very broadly to include streets, markets, private stores, government buildings, train stations and public transit. Belgium adopted a very similar prohibition which also came into force in 2011. Unlike the French law, Belgium’s included the possibility of imprisonment (up to seven days) for women who violate the law. Some municipalities in other European countries (e.g., Italy and Spain) have also enacted laws prohibiting burqas and niqabs in public institutions or have interpreted existing law to effectuate such a prohibition.

Belgium has been second only to France in enacting restrictive legislation in this area. Consider the following case, which has been subjected to considerable criticism.261

SAMIRA ACHBITA V. G4S SECURE SOLUTIONS NV COURT OF JUSTICE OF THE EUROPEAN UNION,

C-157/15 (14 MARCH 2017)

Facts

G4S is an undertaking that provides reception services. G4S employees are not permitted to wear any religious, political or philosophical symbols while on duty. On 12 February 2003, Ms Achbita joined G4S as a receptionist

259 S. Hennette-Vauchez, ‘Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis’, 42 Cardozo L. Rev. (2021) 539.

260 The burqa is a full-body garment that hides a woman’s face by a mesh screen. The niqab is a garment that includes a veil covering the entirety of a woman’s hair and face except for her eyes.

261 See, for example, J. Weiler, ‘Je Suis Achbita!’, 28 Eur. J. Int’l L. (2017) 989.

without objecting to that company rule. However, in April 2006, she announced that, in future, she intended to wear a headscarf during working hours as well, for religious reasons. On 12 June 2006, on account of her firm intention to wear the Islamic headscarf, Ms Achbita was dismissed.

Procedural history

[Between 2007 and 2010, the Antwerpen Labour Court and an appeals court both dismissed a claim by Ms Achbita on the grounds that there had been no discrimination.]

Judgment

29. It is necessary... to determine whether the internal rule at issue in the main proceedings gives rise to a difference in treatment of workers on the basis of their religion or their belief and, if so, whether that difference in treatment constitutes direct discrimination within the meaning of Article 2(2)(a) of [European Council] Directive 2000/78.

30. … [T]he internal rule at issue in the main proceedings refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.

[Based on the evidence, the Court found that the internal rule had not been applied differently to Ms Achbita as compared to any other worker, and that there was thus no difference of treatment that is directly based on religion or belief.]

34. … [The] difference of treatment [might be considered to be] indirectly based on religion or belief … [thus putting] persons adhering to a particular religion or belief … at a particular disadvantage.

35. … [The question is whether the] difference of treatment … is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.

…

37. … [T]he desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate.

38. An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business that is recognised in Article 16 of the Charter and is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.

40. … [T]he fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.

41. In that respect, it is for the referring court to ascertain whether G4S had, prior to Ms Achbita’s dismissal, established a general and undifferentiated policy of prohibiting the visible wearing of signs of political, philosophical or religious beliefs in respect of members of its staff who come into contact with its customers.

42. As regards … the question whether the prohibition … was necessary, it must be determined whether the prohibition is limited to what is strictly necessary. In the present case, what must be ascertained is whether the prohibition on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.

44. Having regard to all of the foregoing considerations, the answer to the question put by the referring court is as follows:

– Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of

any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

– By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a subsequent case, also from Belgium, OP v. Commune d’Ans (Case C 148/22, 28 November 2023), the CJEU considered a claim to wear a headscarf from a municipal worker who had no contact with the public. It held that:

an internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake.

S.A.S. V. FRANCE

EUROPEAN COURT OF HUMAN RIGHTS, GRAND CHAMBER, APPLICATION NO. 43835/11 (1 JULY 2014)

The Facts

I. The Circumstances of the Case

10. The applicant is a French national who was born in 1990 and lives in France.

11. In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.

12. The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.

13. The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.

14. Since 11 April 2011, the date of entry into force of Law no. 2010-1192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places.

The Law

3.TheCourt’sassessment

(a) Alleged violation of Articles 8 and 9 of the Convention

106. The ban on wearing, in public places, clothing designed to conceal the face raises questions in terms of the right to respect for private life (Article 8…) of women who wish to wear the full-face veil for reasons related to their beliefs, and in terms of their freedom to manifest those beliefs (Article 9 …).

107. … [P]ersonal choices as to an individual’s desired appearance, whether in public or in private places, relate to the expression of his or her personality and thus fall within the notion of private life. …

108. [I]n so far as that ban is criticised by individuals who, like the applicant, complain that they are consequently prevented from wearing in public places clothing that the practice of their religion requires them to wear, it mainly raises an issue with regard to the freedom to manifest one’s religion or beliefs … . …

…

(i) Whether there has been a “limitation” or an “interference”

110. … [T]he Law of 11 October 2010 confronts the applicant with a dilemma …: either she complies with the ban and thus refrains from dressing in accordance with her approach to religion; or she refuses to comply and faces criminal sanctions. … There has therefore been … an “interference” with or a “limitation” of the exercise of the rights protected by Articles 8 and 9 … .

…

(iii) Whether there is a legitimate aim [The Court focused on whether the measure was justified by reference to “protection of the rights and freedoms of others”.]

118. Firstly, the Court is not convinced by the Government’s submission in so far as it concerns respect for equality between men and women.

119. … [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, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms. …

120. Secondly, … respect for human dignity cannot legitimately justify a blanket ban on the wearing of the fullface veil in public places. The Court is aware that the clothing in question is perceived as strange by many of those who observe it. It would point out, however, that it is the expression of a cultural identity which contributes to the pluralism that is inherent in democracy….

121. Thirdly, the Court finds, by contrast, that under certain conditions the “respect for the minimum requirements of life in society” referred to by the Government – or of “living together” … – can be linked to the legitimate aim of the “protection of the rights and freedoms of others”.

122. The Court … [is] 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.

(iv) Whether the measure is necessary in a democratic society (α) General principles concerning Article 9 of the Convention

124. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. …

125. While religious freedom is primarily a matter of individual conscience, it also implies freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares. … Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one’s religion or beliefs … .

126. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place limitations on freedom to manifest one’s religion or beliefs in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected … .

127. The Court has frequently emphasised the State’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and has stated that this role is conducive to public order, religious harmony and tolerance in a democratic society. …

128. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail … .

129. It is also important to emphasise the fundamentally subsidiary role of the Convention mechanism. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight … .

…

131. This margin of appreciation, however, goes hand in hand with a European supervision … .

(γ) Application of those principles to the present case

139. As regards the question of necessity …, the Court understands that a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud. It has thus found no violation of Article 9 … in cases concerning the obligation to remove clothing with a religious connotation in the context of security checks and the obligation to appear bareheaded on identity photos for use on official documents. However, in view of its impact on the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal the face can be regarded as proportionate only in a context where there is a general threat to public safety. The Government have not shown that the ban … falls into such a context. …

…

141. The Court observes that [the aim of ensuring the observance of the minimum requirements of life in society as part of the “protection of the rights and freedoms of others”] is an aim to which the authorities have given much weight. … [T]he explanatory memorandum accompanying the bill … indicates that “[t]he voluntary and systematic concealment of the face … is quite simply incompatible with the fundamental requirements of ‘living together’ in French society” and that “[t]he systematic concealment of the face in public places, contrary to the ideal of fraternity, ... falls short of the minimum requirement of civility that is necessary for social interaction”. It indeed falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity. Moreover, the Court is able to accept that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places.

142. Consequently, the Court finds that the impugned ban can be regarded as justified in its principle solely in so far as it seeks to guarantee the conditions of “living together”.

143. It remains to be ascertained whether the ban is proportionate to that aim.

144. Some of the arguments put forward by the applicant and the intervening non-governmental organisations warrant particular attention.

145. Firstly, it is true that only a small number of women are affected. … [A]bout 1,900 women wore the Islamic full-face veil in France at the end of 2009 … . … It may thus seem excessive to respond to such a situation by imposing a blanket ban.

146. In addition, there is no doubt that the ban has a significant negative impact on the situation of women who, like the applicant, have chosen to wear the full-face veil for reasons related to their beliefs. … [T]he ban may have the effect of isolating them and restricting their autonomy, as well as impairing the exercise of their freedom to manifest their beliefs and their right to respect for their private life. … [T]he women concerned may perceive the ban as a threat to their identity.

147. … [A] large number of actors, both international and national, in the field of fundamental rights protection have found a blanket ban to be disproportionate … .

149. … [T]he Court is very concerned … that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010. It is admittedly not for the Court to rule on whether legislation is desirable in such matters. … [R]emarks which constitute a general, vehement attack on a religious or ethnic group are incompatible with the values of tolerance, social peace and non-discrimination … .

150. The other arguments put forward in support of the application must, however, be qualified.

151. Thus, while … the scope of the ban is broad, [the Law] does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. … [T]he ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face. …

152. As to the … criminal sanctions … attached to the ban, … [they] are among the lightest that could be envisaged, since they consist of a fine at the rate applying to second-class petty offences (currently EUR 150 maximum), with the possibility for the court to impose, in addition to or instead of the fine, an obligation to follow a citizenship course.

153. … [T]he ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public. However, for … the Government … it was a question of responding to a practice that the State deemed incompatible … [with] the requirements of “living together”. From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society. It can thus be said that the question whether or not it should be permitted to wear the fullface veil in public places constitutes a choice of society.

154. In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question. … [I]n matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.

155. In other words, France had a wide margin of appreciation in the present case.

156. This is particularly true as there is little common ground among the member States of the Council of Europe as to the question of the wearing of the full-face veil in public. … [T]here is no European consensus against a ban. Admittedly, from a strictly normative standpoint, France is very much in a minority position in Europe: except for Belgium, no other member State of the Council of Europe has, to date, opted for such a measure. … [H]owever, … the question … is or has been a subject of debate in a number of European States.

157. Consequently, having regard in particular to the breadth of the margin of appreciation afforded to the respondent State in the present case, the Court finds that the ban imposed … can be regarded as proportionate to the aim pursued … .

(b) Alleged violation of Article 14 of the Convention taken in conjunction with Article 8 or Article 9

160. The Court notes that the applicant complained of indirect discrimination. It observes in this connection that, as a Muslim woman who for religious reasons wishes to wear the full-face veil in public, she belongs to a category of individuals who are particularly exposed to the ban in question and to the sanctions for which it provides.

161. …[W]hile it may be considered that the ban imposed by the Law of 11 October 2010 has specific negative effects on the situation of Muslim women who, for religious reasons, wish to wear the full-face veil in public, this measure has an objective and reasonable justification for the reasons indicated previously … .

162. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Article 8 or Article 9.

…

[The Court, by 15-2, found no violation of Article 8, and also by 15-2, no violation of Article 9.]

JOINT PARTLY DISSENTING OPINION OF JUDGES NUSSBERGER AND JÄDERBLOM

A. Sacrificing of individual rights to abstract principles

2. … [T]he opinion of the majority … sacrifices concrete individual rights guaranteed by the Convention to abstract principles. …

B. No legitimate aim under the Convention

…

4. [T]he majority see a legitimate aim in ensuring “living together” … . We have strong reservations about this approach.

5. … The very general concept of “living together” does not fall directly under any of the rights and freedoms guaranteed within the Convention. … [T]he concept seems far-fetched and vague.

6. It is essential to understand what is at the core of the wish to protect people against encounters with others wearing full-face veils. The majority speak of “practices or attitudes ... which would fundamentally call into question the possibility of open interpersonal relationships”. … It seems to us, however, that such fears and feelings of uneasiness are not so much caused by the veil itself, … but by the philosophy that is presumed to be linked to it. Thus the recurring motives for not tolerating the full-face veil are based on interpretations of its symbolic meaning. … [A] French parliamentary commission … saw in the veil “a symbol of a form of subservience”. The explanatory memorandum to the French bill referred to its “symbolic and dehumanising violence”. The full-face veil was also linked to the “self-confinement of any individual who cuts himself off from others whilst living among them”. Women who wear such clothing have been described as “effaced” from the public space.

7. All these interpretations have been called into question by the applicant, who claims to wear the full-face veil depending only on her spiritual feelings and does not consider it an insurmountable barrier to communication or integration. … [T]here is no right not to be shocked or provoked by different models of cultural or religious identity, even those that are very distant from the traditional French and European lifestyle. In the context of freedom of expression, the Court has repeatedly observed that the Convention protects not only those opinions “that are favourably received or regarded as inoffensive or as a matter of indifference, but also ... those that offend, shock or disturb”, pointing out that “[s]uch are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’”. The same must be true for dress codes demonstrating radical opinions.

8. … [T]he right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places – the right to be an outsider.

9. It is true that “living together” requires the possibility of interpersonal exchange. It is also true that the face plays an important role in human interaction. But this idea cannot be turned around, to lead to the conclusion that human interaction is impossible if the full face is not shown. This is evidenced by examples that are perfectly rooted in European culture, such as the activities of skiing and motorcycling with full-face helmets and the wearing of costumes in carnivals. Nobody would claim that in such situations (which form part of the exceptions provided for in the French Law) the minimum requirements of life in society are not respected. People can socialise without necessarily looking into each other’s eyes.

12. [I]t is doubtful that the French Law pursues any legitimate aim under … the Convention.

C. Proportionality of a blanket ban on the full-face veil

1.Differentapproachestopluralism,toleranceandbroadmindedness

13. … [It is] difficult to argue that the rights protected outweigh the rights infringed. This is especially true as the Government have not explained or given any examples of how the impact on others of this particular attire differs from other accepted practices of concealing the face, such as excessive hairstyles or the wearing of dark glasses or hats. In the legislative process, the supporters of a blanket ban on the full-face veil mainly advanced “the values of the Republic, as expressed in the maxim ‘liberty, equality, fraternity’”. The Court refers to “pluralism”, “tolerance” and “broadmindedness” … .

14. However, all those values could be regarded as justifying … on the contrary, the acceptance of such a religious dress-code and the adoption of an integrationist approach. In our view, the applicant is right to claim that the French legislature has restricted pluralism… . … In its jurisprudence the Court has clearly elaborated on the State’s duty to ensure mutual tolerance between opposing groups and has stated that “the role of the authorities ... is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”. By banning the full-face veil, the French legislature has done the opposite. …

2.Disproportionateinterference

15. … [W]e cannot … agree with the majority that the ban is proportionate to the aim pursued.

(a) Margin of appreciation

16. … [W]e are unable to conclude that in this particular situation the respondent State should be accorded a broad margin of appreciation.

17. Firstly, the prohibition targets a dress-code closely linked to religious faith, culture and personal convictions and thus, undoubtedly, an intimate right related to one’s personality.

18. Secondly, it is not convincing to draw a parallel between the present case and cases concerning the relationship between State and religion. … [T]he Law was deliberately worded in a much broader manner, generally targeting “clothing that is designed to conceal the face” and thus going far beyond the religious context

19. Thirdly, it is difficult to understand why the majority are not prepared to accept the existence of a European consensus … …. The fact that forty-five out of forty-seven member States of the Council of Europe, and thus an overwhelming majority, have not deemed it necessary to legislate in this area is a very strong indicator for a European consensus. …

20. The arguments drawn from comparative and international law militate against the acceptance of a broad margin of appreciation and in favour of close supervision by the Court. … [I]t still remains the task of the Court to protect small minorities against disproportionate interferences.

(b) Consequences for the women concerned

21. … In our view, the restrictive measure cannot be expected to have the desired effect of liberating women presumed to be oppressed, but will further exclude them from society and aggravate their situation.

22. With regard to the majority’s assumption that the punishment consists of mild sanctions only, … the multiple effect of successive penalties has to be taken into account.

23. … [O]nly a small number of women … are affected by the ban. That means that it is only on rare occasions that the average person would encounter a woman in a full-face veil … .

(c) Less restrictive measures

24. Furthermore, the Government have not explained why it would have been impossible to apply less restrictive measures, instead of criminalising the concealment of the face in all public places. No account has been given as to whether or to what extent any efforts have been made to discourage the relatively recent phenomenon of the use of full-face veils, by means, for example, of awareness-raising and education. …

D. Conclusion

25. … [W]e find that the criminalisation of the wearing of a full-face veil is a measure which is disproportionate to the aim of protecting the idea of “living together” – an aim which cannot readily be reconciled with the Convention’s restrictive catalogue of grounds for interference with basic human rights.

YAKER V. FRANCE

HUMAN RIGHTS COMMITTEE, COMMUNICATION NO. 2747/2016, FINAL VIEWS (17 JULY 2018)

The facts as submitted by the author

2.1 The author is a Muslim and wears a niqab (full face veil). On 6 October 2011, she was stopped for an identity check while wearing her niqab on the street in Nantes. She was then prosecuted and convicted of the minor offence of wearing a garment to conceal her face in public.

2.2 Consequently, the author was convicted on 26 March 2012 and was ordered by the community court in Nantes to pay a fine of 150 euros, the maximum penalty for the offence in question, which was established by Act No. 2010-1192 of 11 October 2010. …

2.4 The author is challenging, on the basis of article 18 of the Covenant, the prohibition against concealing the face in public areas, which deprives those wishing to wear a full-face veil of the possibility to do so.

…

Issues and proceedings before the Committee

Consideration of the merits

8.2 … The Committee notes the State party’s argument that … the Act does not specially treat religious clothing. The Committee notes, however, that article 2 (II) broadly exempts from the Act clothing worn for “health reasons” or on “professional grounds”, or that is “part of sporting, artistic or traditional festivities or events”, including “religious processions”, or clothing that is prescribed or legally authorized by legislative or regulatory provisions. The Committee further notes … that fewer than 2,000 women wear the full-face veil in

France, and that the vast majority of checks under the Act have been performed on women wearing the fullface veil.

8.3 The Committee … considers that the ban introduced under the Act constitutes a restriction or limitation of the author’s freedom to manifest her beliefs or religion by wearing her niqab within the meaning of article 18 (1) of the Covenant.

8.5 … It is therefore incumbent upon the Committee to assess whether the restriction, which is prescribed by law, pursues a legitimate objective, is necessary for achieving that objective, and is proportionate and nondiscriminatory.

8.6 The Committee notes that the State party has indicated two objectives that the Act is intended to pursue, namely the protection of public order and safety, and the protection of the rights and freedoms of others.

8.7 With respect to protection of public order and safety, the State party contends that it must be possible to identify all individuals when necessary to avert threats to the security of persons or property and to combat identity fraud. … [H]owever, … the Act is not limited to such contexts, but comprehensively prohibits the wearing of certain face coverings in public at all times, and that the State party has failed to demonstrate how wearing the full-face veil in itself represents a threat to public safety or order that would justify such an absolute ban. Nor has the State party provided any public safety justification or explanation for why covering the face for certain religious purposes i.e., the niqab is prohibited, while covering the face for numerous other purposes, including sporting, artistic, and other traditional and religious purposes, is allowed. …

8.8 Even if the State party could demonstrate the existence of a specific and significant threat to public safety and order in principle, it has failed to demonstrate that the prohibition contained in Act No. 2010-1192 is proportionate to that objective, in view of its considerable impact on the author as a woman wearing the fullface veil. Nor has it attempted to demonstrate that the ban was the least restrictive measure necessary to ensure the protection of the freedom of religion or belief.

8.9 With regard to the second objective presented by the State party, understood as the protection of the fundamental rights and freedoms of others under article 18 (3), the Committee notes the State party’s argument based on the concept of “living together” …

8.10 … [T]he Committee observes that the concept of “living together” is very vague and abstract. The State party has not identified any 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, including fully veiled women. Nor has the State party explained why such rights would be “unfairly” obstructed by wearing the full-face veil, but not by covering the face in public through the numerous other means that are exempted from the Act. The right to interact with any individual in public and the right not to be disturbed by other people wearing the full-face veil are not protected by the Covenant and therefore cannot provide the basis for permissible restrictions within the meaning of article 18 (3).

8.11 Even assuming that the concept of living together could be considered a “legitimate objective” … the State party has failed to demonstrate that the criminal ban … is proportionate to that aim, or that it is the least restrictive means that is protective of religion or belief.

8.12 … The Committee … concludes that the ban … and the conviction … violated the author’s rights under article 18 of the Covenant.

8.13 As to the author’s claims under article 26 of the Covenant, namely that the law in question had the effect of indirectly discriminating against the minority of Muslim women who wear the full-face veil, the Committee notes the State party’s argument that the prohibition introduced by the Act is not based on the religious connotation of the clothes in question, but on the fact that they conceal the face. … [F]rom the text of the Act, the debate preceding its adoption and its implementation in practice, the Committee observes that

the Act is applied mainly to the full-face Islamic veil, which is a form of religious observance and identification for a minority of Muslim women.

8.15 The Committee notes that the State party has provided no explanation why the blanket prohibition on the author’s veil is reasonable or justified, in contrast to the exceptions allowable under the Act. The Committee further notes that the blanket ban on the full-face veil introduced by the Act appears to be based on the assumption that the full veil is inherently discriminatory and that women who wear it are forced to do so. While acknowledging that some women may be subject to family or social pressures to cover their faces, the Committee observes that the wearing of the full veil may also be a choice or even a means of staking a claim based on religious belief, as in the author’s case. The Committee further considers that the prohibition, rather than protecting fully veiled women, could have the opposite effect of confining them to their homes, impeding their access to public services and exposing them to abuse and marginalization. …

8.16 Finally, although the State party contends that the sanctions imposed on women who decide to wear the full veil in public are “measured”, the Committee notes that the penalties have a criminal nature and have been applied against some women, including the author, on multiple occasions. Such sanctions necessarily negatively impact the author’s right to manifest her religion through wearing the veil and potentially other rights.

8.17 … [T]he Committee considers that the criminal ban … disproportionately affects the author as a Muslim woman who chooses to wear the full-face veil, and introduces a distinction between her and other persons who may legally cover their face in public that is not necessary and proportionate to a legitimate interest, and is therefore unreasonable. The Committee hence concludes that this provision and its application to the author constitutes a form of intersectional discrimination based on gender and religion, in violation of article 26 of the Covenant.

A 2022 report by the Open Society Justice Initiative, entitled Restrictions on Muslim Women’s Dress in the 27 EU Member States and the United Kingdom, traced the evolution of these policies:

Such restrictions were considered unacceptable for most of the post-World War II era in Europe, where respect for the religious liberties of minorities formed an essential component of European liberal democracy. Things started to change in the 1980s and 1990s, as Muslim youth came of age and expected to participate in European societies on equal footing. Geopolitical developments in the Middle East accelerated the change and gave rise to the bogeyman of the suspicious Muslim. After 9/11, policymakers declared a global war on terror premised on this stereotype. A popular narrative proclaimed the discordance of Islam and the West, with Muslim women’s religious dress allegedly always imposed by Muslim men rising as the ultimate symbol of incompatibility. The burqa forced on Afghan women by the Taliban served as the dominant reference. The idea that Muslims as a group were the new “enemy within,” with beliefs and practices reflecting values and norms inferior to those of Europe, acquired legitimacy across the political spectrum. Echoing Orientalist prejudices and stereotypes about Muslims already prevalent in Europe, it served to justify banning the visible presence of Muslim women and Islam from various spaces.262

The report found that only twelve of the 28 states had ‘no legal bans, or cases or reports about institutional or private bans.’ It notes that ‘in most cases it was mainstream political parties that actually enacted religious dress restrictions’, although these had also been supported by far-right political parties. It notes that, although the ECHR and the CJEU had ‘given states and private actors more leeway in instituting bans’, litigation at the national level had been more successful in achieving rulings against bans.

262 Open Society Justice Initiative, ‘Restrictions on Muslim Women’s Dress in the 27 EU Member States and the United Kingdom: Policy Report’, (March 2022) 5.

QUESTIONS

1. Turkey’s situation showed some similarities to the French situation and some dramatic differences. Do you believe that, as a matter of policy or law, the ban of headscarves in public educational institutions was equally justified or unjustified in France and Turkey or more justified in one country than the other?

2. How might we account for the very different approaches taken by the European Court and the Human Rights Committee in these cases?

b. Crucifixes in Italian Classrooms

In a major controversy involving religious symbolism, the ECtHR decided Lautsi v. Italy, which concerned the presence of crucifixes in state school classrooms in Italy. In a unanimous opinion, a chamber of seven judges held that the practice was incompatible with the freedom of religion. Relying in part on Dahlab, the Court reasoned:

Ms Lautsi’s convictions also concern the impact of the display of the crucifix on her children, who at the material time were aged 11 and 13. The Court acknowledges that, as submitted, it is impossible not to notice crucifixes in the classrooms. In the context of public education they are necessarily perceived as an integral part of the school environment and may therefore be considered “powerful external symbols” (see Dahlab v. Switzerland (2001)).

The presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion. That risk is particularly strong among pupils belonging to religious minorities. Negative freedom of religion extends to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. That negative right deserves special protection if it is the State which expresses a belief and dissenters are placed in a situation from which they cannot extract themselves if not by making disproportionate efforts and acts of sacrifice.

Dominic McGoldrick, below, called the political response to the Chamber’s judgment in Lautsi ‘without precedent in European human rights terms’, and noted widespread opposition, including from 20 countries that supported ‘Italy in the defence of the crucifix’. The judgment continues to resonate in Italy many years later. 263

LAUTSI V. ITALY

EUROPEAN

COURT OF

HUMAN RIGHTS, GRAND CHAMBER, APPLICATION NO. 30814/06 (18 MARCH 2011)

[T]he second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind ... .

... [I]t requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any

263 Sebastián Guidi, ‘Law Over Legalism: International Court Legitimacy in Lautsi v. Italy’, 33 Duke J. Comp. & Int’l L. (2023) 45

proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that the States must not exceed.

There is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed.

However, it is understandable that the first applicant might see in the display of crucifixes in the classrooms of the State school formerly attended by her children a lack of respect on the State’s part for her right to ensure their education and teaching in conformity with her own philosophical convictions. Be that as it may, the applicant’s subjective perception is not in itself sufficient to establish a breach of Article 2 of Protocol No. 1.

The Government … explained that the presence of crucifixes in State-school classrooms, being the result of Italy’s historical development, a fact which gave it not only a religious connotation but also an identity-linked one, now corresponded to a tradition which they considered it important to perpetuate. They added that, beyond its religious meaning, the crucifix symbolised the principles and values which formed the foundation of democracy and western civilisation, and that its presence in classrooms was justifiable on that account.

The Court takes the view that the decision whether or not to perpetuate a tradition falls in principle within the margin of appreciation of the respondent State. The Court must moreover take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development. It emphasises, however, that the reference to a tradition cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols.

...

… [T]he decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools speaks in favour of that approach.

This margin of appreciation, however, goes hand in hand with European supervision ... .

In that connection, it is true that by prescribing the presence of crucifixes in State-school classrooms a sign which, whether or not it is accorded in addition a secular symbolic value, undoubtedly refers to Christianity the regulations confer on the country’s majority religion preponderant visibility in the school environment.

That is not in itself sufficient, however, to denote a process of indoctrination ... .

... [A] crucifix on a wall is an essentially passive symbol and this point is of importance in the Court’s view, particularly having regard to the principle of neutrality. It cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.

[The Grand Chamber next describes the passages of the ECtHR’s lower chamber opinion (reproduced above) relying on Dahlab, but determined that that case] cannot serve as a basis in this case because the facts of the two cases are entirely different.

Dahlab concerned the measure prohibiting the applicant from wearing the Islamic headscarf while teaching, which was intended to protect the religious beliefs of the pupils and their parents and to apply the principle of denominational neutrality in schools enshrined in domestic law. After observing that the authorities had duly weighed the competing interests involved, the Court held, having regard above all to the tender age of the children for whom the applicant was responsible, that the authorities had not exceeded their margin of appreciation.

Moreover, the effects of the greater visibility which the presence of the crucifix gives to Christianity in schools needs to be further placed in perspective by consideration of the following points. Firstly, the presence of crucifixes is not associated with compulsory teaching about Christianity. Secondly, according to the indications

provided by the Government, Italy opens up the school environment in parallel to other religions. The Government indicated in this connection that it was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were “often celebrated” in schools; and optional religious education could be organised in schools for “all recognised religious creeds”. Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions. In addition, the applicants did not assert that the presence of the crucifix in classrooms had encouraged the development of teaching practices with a proselytising tendency ... .

Consider the following reactions to Lautsi.

Joseph Weiler, who represented eight intervening states before the Grand Chamber, argues in ‘State and Nation; Church, Mosque and Synagogue’, 8 Int’l. J. Con. L. 157 (2010):

... There are those who truly believe that laïcité is a primordial condition sine-qua-non for a good liberal democracy and that, at least implicitly, the non-laïque position is suboptimal at best and aberrational at worst. Consequently, it is morally imperative for good democrats and liberal pluralists to attempt to clip the wings of religious manifestations of the non-laïque state as far as possible a principled and consistent position.

There are others (myself included) who hold the view that, even more in today’s world than before, the European version of the non-laïque state is hugely important in the lesson of tolerance it forces on such states and its citizens towards those who do not share the “official” religions and in the example it gives the rest of the world of a principled mediation between a collective self-understanding rooted in a religious sensibility, or religious history, or religiously-inspired values and the imperative exigencies of liberal democracy. That there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as “their Queen” too, and equal citizens of England and the UK. I think there is intrinsic value of incalculable worth in the European pluralism which validates both a France and UK as acceptable models in which the individual right to and from religion may take place.

... [S]urely Freedom FROM Religion is not absolute, and its vindication has to be so balanced, and the principle collective good against which it should be balanced would, in my view, be the aforementioned collective freedom of a self-understanding, selfdefinition and determination of the collective self as having some measure of religious reference. Freedom OF Religion surely requires that no school kid be obligated to chant God’s name, even in, say, God Save the Queen. But does Freedom FROM Religion entitle such to demand that others not so chant, to have another national anthem? How does one negotiate the individual and the collective rights at issue here?

... [B]oth to understand the new debates and to arrive at meaningful, ethical, deontological, identitarian and pragmatic results may profit by this reframing.

Stanley Fish, in ‘Crucifixes and Diversity: The Odd Couple’, New York Times (28 March 2011):

The question is not what can a crucifix possibly mean in all the settings the world might offer, but what does it in mean in this setting, hanging on the wall of every classroom with a state imprimatur? What is a non-Christian student likely to think “Aha, a

symbol of pluralism and universal acceptance” or “I get it; this is a Catholic space and I’m here on sufferance?” ...

Exclusion would be the result, we are told, if the students had been the objects of indoctrination, but because the crucifixes just hang there without saying anything, they were not: “[A] crucifix on a wall is an essentially passive symbol” and “it cannot be deemed to have an influence on pupils comparable to that of didactic speech.” Judge Bonello [in concurrence] glosses and drives home the point: “The mere display of a voiceless testimonial of a historical symbol in no away amounts to teaching.” Actually, it does: the lesson (of official authority) is enhanced by not being voiced; the absence of didactic speech itself says “you don’t have to be told what this means; you know.” The effect is the one produced in a country where a king or leader-for-life has his picture hung everywhere. Nothing need be said.

Julie Ringelheim, in ‘State Religious Neutrality as a Common European Standard? Reappraising the European Court of Human Rights Approach’, 6 Oxford J. L. and Relig. (2017) 24:

… [D]etermining what state denominational neutrality means exactly and what it entails in specific contexts raises special challenges for the Court. First of all, neutrality is not a straightforward concept. It can be subject to different interpretations. Second, when elaborating this principle, the Court must take into consideration the diversity of existing state–religion arrangements across Europe. …

… As references to neutrality have multiplied, the meaning afforded to this notion has become blurred. It has come to mean different things in different rulings. And there are clear tensions between some of these interpretations. This ambiguity is problematic. …

… In effect, the Court balances between three different understandings of the concept that need to be disentangled. They are characterized here as ‘neutrality as absence of coercion’, ‘neutrality as absence of preference’, and ‘neutrality as exclusion of religion from the public sphere’. Lautsi and Others v Italy (2011), Folgerø and Others v Norway (2007), and Ebrahimian v France (2015) exemplify each of these models of neutrality. It will be argued that ‘neutrality as absence of preference’ provides the most adequate model for an ECHR-based concept of state religious neutrality.

… [T]he Court’s approach to the principle of state neutrality has become increasingly blurred and fragmented. Where religious instruction at school is at stake, it sticks to the second model of neutrality, that is, respect for conscientious and religious freedom implies that the state should not manifest a preference for a religion. But where the display of religious symbols by the state at school is concerned, the Court retreats to a lower standard of protection. Neutrality here merely means ‘absence of coercion’. At the same time, where states officially opt for the ‘neutrality as exclusion of religion’ model, the Court allows them a wide margin of appreciation to impose restrictions on an individual’s right to manifest their religion when they are in a public institution. … [A]lthough they are very different, the latter two visions of neutrality both entail a weakening of the protection of the individual’s rights if compared with the ‘neutrality as absence of preference’ approach.

Malcolm Evans, in ‘State Neutrality and Religion in Europe: What’s the Prospect?’, 11 Oxford J. L. and Relig. (2022) 4, at 16:

… [T]he tensions inherent in the developing jurisprudence are best exemplified in the judgments of the Chamber and Grand Chamber [in Lautsi]. … [F]or the Chamber, the presence of the cross … embodied the State endorsement of Roman Catholicism and so its presence breached the rights of the applicant; for the Grand Chamber the cross was just ‘there’, passively doing nothing other than just being there, and so its presence did not amount to a violation of the applicant’s rights. … [I]t was in fact doing both. It literally depends on who was looking at it. Ultimately, the Grand Chamber is telling the applicant that it does not see what they are seeing. And like it or not, that is taking sides.

…

The problem with the Chamber decision in Lautsi was that it seemed to suggest that neutrality and impartiality involved cleansing the public space of the trappings of religion on the grounds that those trappings might cause offense. This has only to be stated to be seen to be untenable. There is no right to be insulated from things which cause offence; indeed, the Court has made it very clear for very many years that there is freedom to say things which may cause offense. If causing offense alone is not sufficient to require someone not to speak, how can it be sufficient alone to justify the removal of a cross, or of a statue? One cannot have a classroom in which there both is and is not a cross; a plinth on which there both is and is not a statute. There must be a choice as to which it is to be. …

Dominic McGoldrick, in ‘Religion in the European Public Square and in European Public Life: Crucifixes in the Classroom?’, 11 Hum. Rts. L. Rev 451 (2011), at 487:

There was no evidence before the GC [Grand Chamber] that the display of a religious symbol on classroom walls might have an influence on pupils ... . The GC’s reliance on the lack of evidence is particularly interesting. In previous religious clothing cases the Court either ignored evidence that the wearing had not actually caused any problems or made its own assertions about their possible effects (Dahlab, Şahin).

...

Even engaging in a relative approach to the assessment of symbols was inevitably going to leave the GC open to criticism. Islamic headscarves, worn by a minority, may be powerful external symbols that challenge neutrality. However, Christian crucifixes, a symbol of the majority religion, are somehow merely passive and do not challenge neutrality. It may have been better for the GC to have simply accepted that the assessment of the meaning and effect of religious symbols was complex and would be left to the national authorities to assess within the normal bounds of the margin of appreciation.

...

As noted, the GC’s view was that the decision whether or not to perpetuate a tradition fell in principle within the margin of appreciation of the State. Historically, those traditions have been dominated by Christianity. The inevitable consequence is that nondominant traditions (i.e. minority, non-Christian ones) will not be equally represented or perpetuated in the public reasoning and public visual squares. Added to that, the ECtHR has accepted that, in the defence of a secular order, a state can prohibit the wearing of Islamic headscarves in schools, and even in universities ...

It has been suggested that Christianity and Christian values have been defended even at the expense of trampling on fundamental individual freedoms, because the ECtHR does not perceive them as conflicting with the core values of the Convention system. Islam, on the other hand, even when it is the vast majority’s religion (as with Turkey), has been restrictively regulated on the ground that it threatens the democratic basis of the State. Assessing the value of the ECHR to Muslims is a complex task. However, the problem is

also one of public and political perception ... . It has been argued that the GC’s decision in Lautsi, ‘confirms the Christian-centric outlook of European institutions and it will confirm many Turks’ perceptions that as Muslims, they are inevitably viewed with suspicion’.

QUESTIONS

1. Is the logic of the ECtHR ruling in Dahlab consistent with the Chamber’s or the Grand Chamber’s decision in Lautsi?

2. Does the presence of the crucifix in Italian classrooms constitute, in itself, an injury to minority groups that is incompatible with the freedom of religion or is the real threat the prospective risk of a slippery slope?

3. Are you persuaded by Weiler that all citizens of England see the Queen as ‘their Queen’? Do you agree with Weiler’s framing of that claim:

[I]t is this special combination of private and public liberties, reflecting a particular spirit of tolerance, which explains how in countries such as, say, Britain or Denmark to give but two examples, where there is an established state church no less Anglican and Lutheran, respectively Catholics, Jews, Muslims and, of course, the many citizens who profess no religious faith, can be entirely ‘at home,’ play a full role in public life including the holding of the highest office, and feel it is ‘their country’ no less than those belonging to the established church.

4. McGoldrick states that the Grand Chamber perhaps should have ‘simply accepted that the assessment of the meaning and effect of religious symbols was complex and would be left to the national authorities to assess within the normal bounds of the margin of appreciation.’ Would applying his criticism result in a different outcome in the Lautsi case or simply a different rationale for the same holding?

5. Neville Cox, in ‘Pejorative Assertions, Human Rights Evaluation, and European Veiling Laws’, 71 Am. J. Comp. L. (2023) 1, reinforces McGoldrick’s emphasis on the importance of actual evidence. He argues that the European Court, in contrast to the UN Human Rights Committee, ‘accepts assertions of facts from states as to why their laws are justified in the absence of any demonstrable supporting evidence’ and characterizes this as ‘an irresponsible abdication of responsibility’. How might a more demanding approach in requiring evidence to support governments’ assertions about impact, affect the outcome in such cases?

4. Freedom of Speech

Freedom of speech forms one of the obvious boundary lines between relatively open and closed societies, between liberal democracies and different types of authoritarian states. Whatever the form of authoritarian regime, a liberal value like speech and its related rights such as assembly and association will bow to one or another degree to censorship and other repressive controls. In some instances, the explanations for different understandings of this human right would stress factors like an authoritarian regime’s guiding ideology and its rulers’ concern about resistance or subversion. Relatively free speech may pose too great a danger for the survival of the existing political system. In other cases, different conceptions of free speech and its relation to other rights and state interests may reflect religious beliefs, cultural patterns or long-standing traditions and practices.

But free speech is not only at risk in authoritarian states. Even states with strong human rights traditions might struggle to find an appropriate balance between robust free speech protections and respect for the rights of

others. In recent years, the boundaries of the right to free speech in a liberal society have been tested by hate speech in its many different forms, as well as calls to prohibit speech (including offensive texts and cartoons) deemed blasphemous or defaming of a religion. It is these latter issues that are examined below.

Hate Speech

The heterogeneity generated within many countries by large-scale migration has led to increased racial, religious and cultural tensions and backlash, which have in turn been exploited and exacerbated by populist and nationalist political responses. The ubiquity of social media and other novel forms of communication has enabled hate speech to proliferate, made it harder to define and regulate, and given it a greater international reach and salience.

The ICCPR Committee’s views in the 1996 Faurisson case below concern a ‘Holocaust-denial law’ that has a close affinity with laws making ‘hate speech’ a criminal offence (that may also be subject to civil sanctions). While the subsequent materials emphasize the definitional challenges involved, the term covers abusive, denigrating, or harassing speech based on a group or individual’s national, religious, racial or ethnic identity. In some but not all definitions, such speech must incite violence or discrimination.264

The laws imposing criminal and other sanctions on hate speech clearly impinge on freedom of speech, a core value protected under the major universal and regional human rights instruments:

Article 19, UDHR: Everyone has the right to freedom of opinion and expression; this right includes freedom to ... impart information and ideas through any media and regardless of frontiers.

Article 19, ICCPR:

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to … impart information and ideas of all kinds, regardless of frontiers ...

(3) The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Note also the following ICCPR articles, each of which has a comparable UDHR article: (1) the equal protection clause in Article 26; (2) the provision in ICCPR Article 5 that nothing in the Covenant should be interpreted as implying ‘for any group or person any right to engage in any activity … aimed at the destruction of any of the rights and freedom recognized herein ... .’; and (3) the provision in Article 17 that no one shall be subject to ‘arbitrary or unlawful interference with his privacy … nor to unlawful attacks on his honour and reputation’.

The arguments in favour of free speech are broadly familiar, for example: its contribution to the full realization of the individual human personality; the challenge to existing beliefs (the ‘marketplace of ideas’) and the related stimulus to inquiry, debate and development of knowledge; its relation to principles of democratic government and pluralism; and its close functional association with other human rights like freedoms of belief, religion and association. But are these arguments sufficient to justify the protection of hate speech directed at particular racial, ethnic, religious, gender identity or other groups or their members? Such speech itself attacks basic premises of the human rights system, premises as deep as equal human dignity, respect for others and equal protection. Hate speech may deny that the targeted group is entitled to benefit together with the rest of the population from human rights protections. It may advocate, indeed passionately urge, discriminatory or even

264

J. Waldron, The Harm in Hate Speech (2012).

violent action against members of the targeted group. It may pose threats of a greater or lesser immediacy of such violence.

The quoted provisions above of the ICCPR include qualifications to free speech that bear generally on these types of restrictive laws. Several human rights instruments are more explicit on these issues for example, Article 20(2) of the ICCPR: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’ Manfred Nowak, in U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn. 2005), observes (at 474–5) that the ‘legal formulation of this provision is not entirely clear’. The wording of paragraph (2):

literally means that incitement to discrimination without violence must also be prohibited ... . Particularly inexplicable is the insertion of the word ‘discrimination’... .

... It is most difficult to conceive of an advocacy of national, racial or religious hatred that does not simultaneously incite discrimination ... . Art. 20(2) … may be sensibly interpreted only in light of its object and purpose, i.e., taking into consideration its responsive character with regard to the Nazi racial hatred campaigns ... . Thus, despite its unclear formulation, Art 20(2) does not require States parties to prohibit advocacy of hatred in private that instigates non-violent acts of racial or religious discrimination. What the delegates … had in mind was to … prevent the public incitement of racial hatred and violence within a State or against other States and peoples.

Some states have forbidden political groups or parties that are based on racism, and hence employ hate speech, from participating in elections. In Israel, for example, Amendment No. 9 to the Basic Law on the Knesset (Parliament) provides: ‘A candidate’s list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following: … (3) incitement to racism’. In late 2022, the newly elected coalition government announced its intention to eliminate that provision.

THE JERSILDAND JALLOWDECISIONS

Consider the approach of the European Court of Human Rights in Jersild v. Denmark, (Application No. 15890/89) (1994). The question was whether Jersild, a Danish journalist, was criminally liable for aiding and abetting three youths who made racist remarks on interviews conducted by Jersild on a television programme on matters of public interest. The youths were members of the Greenjackets, a group that engaged in hate speech, in this case against Danish residents of African descent. In the course of the interview, which had been sharply edited by Jersild from an initial length of hours to a few minutes, the men made numerous ugly and denigrating remarks about black people. There was no allegation that Jersild or the broadcasting station shared those views. On the other hand, since the point of the programme was to convey information to the Danish public about atypical, small racist groups, there was no effort by Jersild or the broadcasting station to challenge or oppose the racist views expressed.

A Danish penal statute, responsive to obligations of Denmark under the Convention on the Elimination of All Forms of Racial Discrimination, imposed a fine or imprisonment on ‘[a]ny person who, publicly or with the intention of disseminating it to a wide circle of people, makes a statement, or other communication, threatening insulting or degrading a group of persons on account of their race, colour, national or ethnic origin or belief ...’. The three youths were found guilty of violating the statute, and did not appeal. Jersild was found guilty of aiding and abetting the three youths. His conviction was affirmed by the Danish appellate courts, and he then instituted proceedings before the European Court of Human Rights.

The Court decided that the conviction that is, not the hate-speech statute abstractly, but the statute as here applied to Jersild for aiding and abetting violated the free expression provisions (including freedom of media) of Article 10 of the ECHR. Its opinion stressed the need to protect freedom of the press, and that news reporting through interviews was an important means of informing the public. Conviction of a journalist in these circumstances could hamper discussion of matters of public interest. It concluded that the limitation on Jersild’s freedom of expression was not ‘necessary in a democratic society’, a requirement of Article 10. The prosecution and conviction were disproportionate to the state’s interest, also expressed in Article 10, of protecting the reputation or rights of others.

A joint dissenting opinion by Judges Ryssdal, Bernhardt, Spielmann and Loizou observed:

... The applicant has cut the entire interview down to a few minutes, probably with the consequence or even the intention of retaining the most crude remarks. That being so, it was absolutely necessary to add at least a clear statement of disapproval. The majority of the Court sees such disapproval in the context of the interview, but this is an interpretation of cryptic remarks. Nobody can exclude that certain parts of the public found in the television spot support for their racist prejudices.

And what must be the feelings of those whose human dignity has been attacked, or even denied, by the Greenjackets? Can they get the impression that seen in context the television broadcast contributes to their protection? A journalist’s good intentions are not enough in such a situation, especially in a case in which he has himself provoked the racist statements.

Another dissenting opinion by Judges Gölcüklü, Russo and Valticos noted:

While appreciating that some judges attach particular importance to freedom of expression, the more so as their countries have largely been deprived of it in quite recent times, we cannot accept that this freedom should extend to encouraging racial hatred, contempt for races other than the one to which we belong, and defending violence against those who belong to the races in question. It has been sought to defend the broadcast on the ground that it would provoke a healthy reaction of rejection among the viewers. That is to display an optimism, which to say the least, is belied by experience. Large numbers of young people today, and even of the population at large, finding themselves overwhelmed by the difficulties of life, unemployment and poverty, are only too willing to seek scapegoats who are held up to them without any real word of caution; for and this is an important point the journalist responsible for the broadcast in question made no real attempt to challenge the points of view he was presenting, which was necessary if their impact was to be counterbalanced, at least for the viewers.

Consider also a 2022 Opinion by the UN Committee on the Elimination of All Forms of Racial Discrimination in a case involving Denmark:

JALLOW V. DENMARK

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, OPINION ADOPTED REGARDING COMMUNICATION NO. 62/2018, UN DOC. CERD/C/108/D/62/2018 (1 DECEMBER 2022)

1. The author… is Momodou Jallow, born in 1977. He is a Swedish national, former spokesman for the National Association of Afro-Swedes and national coordinator for the European Network Against Racism in Sweden.

Factual background

2.1 On 23 October 2014, an exhibition of pictures by the controversial Swedish artist D.P. was held on the premises of the Danish Parliament in Copenhagen, under the auspices of the Danish People’s Party. …

2.2 The pictures exhibited included the following:

(a) An image of Adolf Hitler with the text: “NOT ONLY [N*****S] HAVE DREAMS”;

(b) An image of the author, in which he is hung by the neck from a bridge, along with two other black persons, with the text: “HANG ON, Afrofobians”;

(c) An image of the author, in which he appears as a slave who runs away from his owner, with the text: … (Our negro slave has run away) [and] (He disappeared / last Saturday 16 April and goes by the name of Mamadou Jallow …;

(d) A cartoon showing a black person with a liquorish pipe in his or her mouth, with the text: “this is not a crack[N****R] or is it?”;

(e) A picture of two Roma community leaders, including their names, with the text: … (Gypsy crime is a good thing).

2.3 The artist D.P. has been convicted in Sweden of defamation and inciting hatred against an ethnic group, for creating and exhibiting those images. In Copenhagen, the images were exhibited with an explanatory text based on interviews given by the artist, explaining the content of the relevant picture, its background and purpose, and the decisions by the Swedish courts concerning each of them.

2.4 The explanatory text presented with the picture described in paragraph 2.2 (a) above indicated that, given the media attention given to the fiftieth anniversary of Martin Luther King Junior’s “I have a dream” speech, D.P. made the work to draw attention to the fact that Hitler also had a dream and that not all dreams deserved being celebrated. The explanatory text presented with the picture in paragraph 2.2 (b) above indicated that the artwork was related to an incident that had occurred in 2013, when a black man had been ill-treated and almost pushed off a bridge in Sweden. The author, who was at that time the spokesman for the National Association of Afro-Swedes, had indicated that the incident was related to “white Swedish racism”. However, it was later determined that the perpetrators of the attack were of Kurdish origin. … The explanatory text displayed with the picture described in paragraph 2.2 (d) above indicated that the artwork had been in response to the attempt by the European Union to prohibit liquorish pipes. In addition, it was indicated that the picture was related to the decision of a liquorice manufacturer to stop using a black face as a logo, to avoid stereotyping black people. The artist, emulating René Magritte’s painting The Treachery of Images, in which the text under the image of a pipe reads “Ceci n’est pas une pipe” (This is not a pipe), “drew a liquorice pipe, as it was not a ‘crack[n****r]’, but only a liquorice pipe”. …

Complaint

3.1 The author alleges that the State party has violated his rights under articles 4 (a) and (c) and 6 of the International Convention on the Elimination of Racial Discrimination [ICERD], by allowing the exhibitions to take place and by refusing to prosecute the organizers.

3.2 According to the author, the decision to stop the investigation constitutes a violation of article 4 (a), because it reveals that, in practice, the authorities prevent the effective investigation of hate crimes falling under article 266 of the Criminal Code. …

Consideration of the merits

7.5 … In order to qualify as racist hate speech as encompassed by article 4 (a) of the Convention, … it does not suffice … that the expressions in question contain a racist content. … [T]he Convention requires, in addition, that the speech act in question amounts to the dissemination of ideas based on racial or ethnic superiority or hatred, incitement to hatred, contempt or discrimination, threats or incitement to violence and expressions of insults, ridicule or slander or justification of hatred, contempt or discrimination, when it clearly amounts to incitement to hatred or discrimination. The racist content of a speech act must be accompanied by one of these additional factors … . …

…

7.7 … [T]he Committee concludes that the five pictures referred to in the communication fall within the scope of article 4 (a) of the Convention. The Committee notes the racist depictions and wording that, in different ways, express ideas of racial superiority. They compare the Civil Rights Movement with the ideology of National Socialism, use racial slurs and depict images of slavery to degrade a person. Some of the pictures do not only

display a racist content, but also depict individual persons and portray them in a degrading manner, reproducing racist stereotypes in a way that can incite racial hatred, discrimination and violence. …

7.8 The Committee takes note of the State party’s assertion that the exhibition … [was intended] to start an essential social debate about the limits of the freedom of expression in a democratic society. …

7.9 … [T]he expression of ideas and opinions made in the context of academic debates, political engagement or similar activity, and without incitement to hatred, contempt, violence or discrimination, should be regarded as legitimate exercises of the right to freedom of expression, even when such ideas are controversial. … The Committee notes that the context of an exhibition cannot be used as a pretext in order to display pictures which would otherwise be understood as racist hate speech. The … explanatory texts of the pictures did not show that the organizers of the exhibitions distanced themselves from the racist content of the pictures. … [R]eprints of the pictures were sold in the exhibition hall, thereby facilitating [their] dissemination … . Against this background, the Committee does not agree that the purpose of the exhibitions was solely to start a debate … but that it also served the purpose to disseminate the pictures and their racist content. …

7.12 … The Committee takes note of the decision of the State Prosecutor, in which she analysed each picture and the text accompanying it … [and of the fact that] the Director of Public Prosecutions confirmed this assessment.

7.13 The Committee notes with appreciation that the Prosecution Service of the State party took the allegations of racist hate speech seriously and conducted a thorough analysis … . … The mere conduct of an investigation does not suffice. In this context, the Committee also recalls its recommendation that the criminalization of forms of racist expression should be reserved for serious cases, to be proven beyond reasonable doubt, while less serious cases should be addressed by means other than criminal law, taking into account, inter alia, the nature and extent of the impact on targeted persons and groups. In the light of the qualification of the pictures as racist hate speech, however, the Convention required an appropriate and proportional response from the State party in an effort to combat this incident of racial discrimination. The absence of an effective response by the State party to the incident that qualifies as racist hate speech was not in conformity with the requirements of the Convention.

8. The … facts … disclose a violation of article 4 (a), read in conjunction with article 6, of the Convention.

Betül Durmuş, in ‘The CERD stands firm against racist hate speech: Jallow v. Denmark’, EJIL: Talk!, (2 June 2023) criticized the decision for not having engaged sufficiently with the role of satire:

… [T]he ECtHR famously held that “satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” and “any interference with an artist’s right to such expression must be examined with particular care”. … [T]he ECtHR also noted later that satire is not always a mitigating factor: “the blatant display of a hateful and anti-Semitic position disguised as an artistic production is as dangerous as a fully-fledged and sharp attack”. It is unfortunate that the Committee did not provide further guidance as to how it understands the role of satirical art under Article 4.

QUESTION

What criteria would enable the CERD Committee or any other human rights body to assess whether the conduct in the Jallow case should be classified as satire deserving of more leeway?

HATE SPEECH IN CONFLICT SITUATIONS

Recall the 1946 Judgment of the International Military Tribunal at Nuremberg (Ch. 2D, above), which makes sparse reference to the Holocaust but includes the following observation:

The persecution of the Jews at the hands of the Nazi Government has been proved in the greatest detail before the Tribunal. It is a record of consistent and systematic inhumanity on the greatest scale. Ohlendorf, Chief of Amt III in the RSHA from 1939 to 1943, and who was in command of one of the Einsatz groups in the campaign against the Soviet Union testified as to the methods employed in the extermination of the Jews ... . When the witness Bach Zelewski was asked how Ohlendorf could admit the murder of 90,000 people, he replied: ‘I am of the opinion that when, for years, for decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable’ ... . The Nazi Party preached these doctrines throughout its history, Der Stürmer and other publications were allowed to disseminate hatred of the Jews, and in the speeches and public declarations of the Nazi leaders, the Jews were held up to public ridicule and contempt ... .

Consider the following observations about Rwanda by Bill Berkeley, ‘Radio in Rwanda: The Sounds of Silence’, San Diego Union-Tribune (18 August 1994):

... Human rights groups, the United Nations and even, reluctantly, the U.S. State Department have described [the] systematic slaughter [in Rwanda] as ‘genocide’, yet no one has explained how thousands of peasants who say they had never killed before could have been lured, incited or coerced into participating in mass murder on par with this century’s worst massacres. One answer … lies in the sinister propaganda broadcast by radio stations affiliated with the now-deposed Rwandan government. This was the match that started the fire … .

... The Tutsis were demonized … Radio Rwanda and a station owned by members of [the former Hutu President] Habyarimana’s inner circle, Radio Milles Collines, had been terrorizing the Hutus with warnings about the evil Tutsi-led RPF and Hutu oppositionists, who were labeled ‘enemies’ or ‘traitors’ and who ‘deserved to die’. Endless speeches, songs and slogans demonized the Tutsis ... .

Throughout the terror, Radio Rwanda and Radio Milles Collines have systematically blurred the distinction between rebel soldiers and Tutsi civilians. On May 23, for example, Radio Rwanda warned its listeners of what it called the ‘means and clues that the Inyenzi [cockroaches] use to infiltrate in a given zone’. It said RPF soldiers ‘change their clothing appearance most of the time, trying to be confused with ordinary people who till the soil and go to the market’.

Hutus were urged to ‘guard seriously the roadblock’, a reference to the checkpoints where Tutsis were selected for slaughter. On June 1 Radio Milles Collines described the rebels as ‘criminals’ responsible for a series of harrowing massacres, a fact it claimed had been ‘confirmed by international sources’... . [T]he broadcast concluded: ‘This is the real face of the RPF. These people are not Rwandans, they are revengeful Ugandans. We hate them; we are disgusted with them, and nobody will accept that they take power ... .’

...

‘All the Westerners who come here ask us this question’, says Sixbert Musangamfura, a Hutu journalist. ‘They forget the evil of Hitler’s propaganda. The propaganda heard here resembles the propaganda made by Joseph Goebbels. People received this propaganda all day long. It is the propaganda that is at the base of this tragedy.’ ...

In relation to the mass killings and displacement in Myanmar, noted in Ch. 2D above, Jenifer Whitten-Woodring et al., in ‘Poison If You Don’t Know How to Use It: Facebook, Democracy, and Human Rights in Myanmar’, 25 Int’l J. Press/Pol. (2020) 407 describe the role of social media:265

… In 2014, the price of SIM cards dropped to about $1. By 2015, mobile phone penetration reached 56 percent …

… Facebook became synonymous with the Internet and an important source for news … in part due to Facebook’s … “free basics” program, which … allowed many cellphone customers to sign up for a free, albeit limited, version of Facebook … By 2017 … more than 30 percent of the population had Internet access. … [T]he government mostly does not regulate the Internet.

Violence toward the Rohingya coincided with a proliferation in extreme speech and disinformation appearing on Facebook, much of it targeting Muslims and the Rohingya in particular. Fink argues that Facebook’s wide reach, its interactivity, and viral potential created an atmosphere of “heightened anxiety” and that “in at least one case,” a Facebook post appeared to connect directly to mob violence directed at the Rohingya. …

The conflict escalated in August 2017. At that time, there were more than 150 highly influential accounts, pages, and groups that routinely spread hateful messages against Muslims and the Rohingya, available on Facebook. … [The military’s] “clearance operations” … prompted more than 750,000 Rohingya to flee. [In 2018,] the U.N. FactFinding Mission called … for an investigation into the military’s use of Facebook in the spread of hate speech and disinformation.

… Facebook gained influence at a time when government publications seemed to condone extreme speech and when trust in foreign media was declining. … [C]onditions … were ripe for online extreme speech to occur and for disinformation to remain unchallenged. …

SEXUAL ORIENTATION HATE SPEECH

In Vejdeland & Ors v. Sweden (Application No. 1813/07) (2012) the four applicants were convicted for distributing some 100 leaflets left in or on pupils’ lockers in an upper secondary school. They contained antihomosexual messages that the Swedish Supreme Court found to constitute agitation against a national or ethnic group, defined at the time to include contempt for a group of people with reference to their sexual orientation.

Having found that the convictions did interfere with the applicants’ Article 10(1) freedom of expression, the European Court examined whether that interference was ‘necessary in a democratic society’, in terms of Article 10(2). It reiterated its long-standing jurisprudence according to which freedom of expression protects ideas, even if they offend, shock or disturb, but that necessary restrictions can be imposed.

54. The Court notes that the applicants distributed the leaflets with the aim of starting a debate about the lack of objectivity of education in Swedish schools ... . [E]ven if this is an acceptable purpose, regard must be paid to the wording of the leaflets. [A]ccording to the leaflets, homosexuality was “a deviant sexual proclivity” that had “a morally destructive effect on the substance of society” [and] was one of the main reasons why HIV and AIDS had gained a foothold and that the “homosexual lobby” tried to play down paedophilia. In the Court’s

265 See also N. Morada’ ‘Hate Speech and Incitement in Myanmar before and after the February 2021 Coup’, 15 Global Responsibility to Protect (2023)107.

opinion, although these statements did not directly recommend individuals to commit hateful acts, they are serious and prejudicial allegations.

55. [I]nciting to hatred does not necessarily entail a call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating racist speech in the face of freedom of expression exercised in an irresponsible manner ... . [D]iscrimination based on sexual orientation is as serious as discrimination based on “race, origin or colour”

56. The Court also takes into consideration that the leaflets were left in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept them ... . Moreover, the distribution of the leaflets took place at a school which none of the applicants attended and to which they did not have free access.

57. … The Supreme Court acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. [It] … found that the statements in the leaflets had been unnecessarily offensive. It also emphasised that the applicants had left the leaflets in or on the pupils’ lockers, thereby imposing them on the pupils. Having balanced the relevant considerations, [it] found no reason not to apply the relevant Article of the Penal Code.

58. Finally, … [the] Court notes that the applicants were not sentenced to imprisonment … [but instead] three of them were given suspended sentences combined with fines ranging from approximately EUR 200 to EUR 2,000, and the fourth applicant was sentenced to probation. The Court does not find these penalties excessive in the circumstances.

59. … [T]he Court considers that the conviction … and the sentences … were not disproportionate to the legitimate aim pursued and that the reasons given by the Supreme Court in justification of those measures were relevant and sufficient. The interference with the applicants’ exercise of their right to freedom of expression could therefore reasonably be regarded by the national authorities as necessary in a democratic society for the protection of the reputation and rights of others.

60. … [T]he application does not reveal a violation of Article 10 of the Convention.

CONCURRING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGE NUSSBERGER:

1. … [I]t is with the greatest hesitation that I voted in favour of finding no violation … .

2. As my colleague, Judge András Sajó, pointed out [in dissent] in Féret v. Belgium [16 July 2009]:

“Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go “against the spirit” of the Convention. But “spirits” do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgment, as our personal convictions can influence our ideas about what is actually dangerous.”

4. … [The Swedish Supreme Court relied, inter alia, on an obligation] “to avoid, as far as possible, statements that are unwarrantably offensive to others, constituting an assault on their rights”... .

5. It is submitted that this is a rather vague test which seems to me to be inconsistent with the traditional and well-established case-law of our Court ... .

6. Still, I agreed, albeit very reluctantly, to find no violation because the distribution of the leaflets took place at a school … in the lockers of young people who were at an impressionable and sensitive age and who had no possibility to decline to accept the leaflets. …

7. It should also not be forgotten that a real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression under [Article 10(2)] ... .

CONCURRING OPINION OF JUDGE BOŠTJAN M. ZUPANČIČ:

1. It was with some hesitation that I voted for no violation of Article 10 ... .

3. [T]he American Supreme Court takes a very liberal position concerning the contents of the controversial messages. That the statement is arguably of inappropriate or controversial character “... is irrelevant to the question of whether it deals with a matter of public concern” … “Speech on public issues occupies the highest rank of the hierarchy of First Amendment values, and is entitled to special protection”.

4. Moreover, the American Supreme Court has set a higher standard for the applicable law in such cases to be facially constitutional. First, it must avoid content discrimination (i.e., the State cannot forbid or prosecute inflammatory speech only on some “disfavoured” subjects) and, second, it must avoid viewpoint discrimination (i.e., forbidding or prosecuting inflammatory speech that expresses one particular view on the subject) ... . [I]f this American double test were applied to the present case, the [Swedish law] would not pass muster on either count, especially the second: had the applicants defended homosexuality and railed against “wicked homophobes” in their leaflets, they would probably not have been convicted.

5. In our case we have relied on a different kind of logic as did the Swedish Supreme Court … .

…

9. ... School grounds [are] a non-public place, requiring an intrusion in order to distribute any information of whatever kind that has not been previously approved by the school’s authorities. Coming back to the [US] Supreme Court …, it has held that “the undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior”.

12. … [W]e seem to go too far in the present case on the grounds of proportionality and considerations of hate speech in limiting freedom of speech by over-estimating the importance of what is being said. In other words, if exactly the same words and phrases were to be used in public newspapers ..., they would probably not be considered as a matter for criminal prosecution and condemnation.

GENDERED HATE SPEECH

Gendered hate speech has been voluminous in recent years, especially on social media. Consider the following response by Irene Khan, UN Special Rapporteur on the right to freedom of opinion and expression (UN Doc. A/76/258 (2021)):

68. As misogyny proliferates on social media platforms, there are increasing calls to prohibit or criminalize gendered hate speech. …

…

70. Although gender and sex are not mentioned in [ICCPR] article 20 (2), they can and should be considered grounds for protection in view of the gender equality clauses elsewhere in the Covenant and the broader intersectional approach to non-discrimination

In addition … the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence,266 six elements are proposed as a threshold test for hate speech: the context; the speaker; the intent; the content and form of the speech; the extent of the speech act; and the likelihood, including the imminence, of harm. Providing all these elements are satisfied, gendered hate speech can be prohibited under international law. However, it should not be criminalized except in the most egregious cases of real and imminent danger with a clear intention to cause serious harm.

71. The Rabat Plan of Action … sets out three categories: harmful speech that constitutes a crime because it presents real and imminent danger; harmful speech that does not reach that threshold but may justify civil action; and offensive speech that raises concerns in terms of tolerance, hostility or discrimination and should be addressed through non-legal measures, such as condemnation, awareness-raising and education.

72. Such a graduated approach could provide an international benchmark for defining gender-based hate speech in a way that protects both women’s safety and freedom of expression.

REGULATION OF HATE SPEECH

The broader question of how to respond to online hate speech was considered by a previous Special Rapporteur on freedom of opinion and expression, David Kaye (UN Doc. A/74/486 (2019)). He emphasized that approaches in international law to ‘hate speech’ involve a ‘double ambiguity’. On one hand, many governments use it in a similar manner to the ‘way in which they use “fake news”, to attack political enemies, non-believers, dissenters and critics.’ But, on the other hand, the perception that it is ‘just speech’ ‘seems to inhibit Governments and companies from addressing genuine harms. He concluded that all companies in the ICT sector should:

(a) Evaluate how their products and services affect the human rights of their users and the public, through periodic and publicly available human rights impact assessments;

(b) Adopt content policies that tie their hate speech rules directly to international human rights law, indicating that the rules will be enforced according to the standards of international human rights law, including the relevant United Nations treaties and interpretations of the treaty bodies and special procedure mandate holders and other experts, including the Rabat Plan of Action;

(c) Define the category of content that they consider to be hate speech with reasoned explanations for users and the public and approaches that are consistent across jurisdictions;

(d) Ensure that any enforcement of hate speech rules involves an evaluation of context and the harm that the content imposes on users and the public, including by ensuring that any use of automation or artificial intelligence tools involve human-in-the-loop;

(e) Ensure that contextual analysis involves communities most affected …;

(f) As part of an overall effort to address hate speech, develop tools that promote individual autonomy, security and free expression, and involve de-amplification, de-monetization, education, counter-speech, reporting and training as

266 UN Doc. A/HRC/22/17/Add.4 (2013), Appendix.

alternatives, when appropriate, to the banning of accounts and the removal of content.

In light of Kaye’s recommendations, consider Facebook’s Community Standards on Hate Speech (June 2023): 267

We believe that people use their voice and connect more freely when they don’t feel attacked on the basis of who they are. That is why we don’t allow hate speech on Facebook. It creates an environment of intimidation and exclusion, and in some cases may promote offline violence.

We define hate speech as a direct attack against people rather than concepts or institutions on the basis of what we call protected characteristics: race, ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and serious disease. We define attacks as violent or dehumanizing speech, harmful stereotypes, statements of inferiority, expressions of contempt, disgust or dismissal, cursing and calls for exclusion or segregation. We also prohibit the use of harmful stereotypes, which we define as dehumanizing comparisons that have historically been used to attack, intimidate, or exclude specific groups, and that are often linked with offline violence. We consider age a protected characteristic when referenced along with another protected characteristic. We also protect refugees, migrants, immigrants and asylum seekers from the most severe attacks, though we do allow commentary and criticism of immigration policies. Similarly, we provide some protections for characteristics like occupation, when they’re referenced along with a protected characteristic. Sometimes, based on local nuance, we consider certain words or phrases as frequently used proxies for PC groups.

We also prohibit the usage of slurs that are used to attack people on the basis of their protected characteristics. However, we recognize that people sometimes share content that includes slurs or someone else’s hate speech to condemn it or raise awareness. In other cases, speech, including slurs, that might otherwise violate our standards can be used self-referentially or in an empowering way. Our policies are designed to allow room for these types of speech, but we require people to clearly indicate their intent. If the intention is unclear, we may remove content.

The Faurisson opinion that follows deals with ‘Holocaust denial laws’ that have been enacted by many states. 268 As noted in Dominic McGoldrick and Thérèse O’Donnell, ‘Hate-Speech Laws: Consistency with National and International Human Rights Law’, 18 Leg. Stud 453 (1997), at 457, these laws vary a great deal:

The essential feature of the laws which attracts the label of holocaust denial is that they make it a criminal offence to deny certain things in a certain way ... . [F]or the French law it is ‘crimes against humanity as defined by the Nuremberg International Military Tribunal’. The German law is wider, as it refers to ‘persecution under National Socialism or any other form of despotism or tyranny’. The Israeli law is even wider again: ‘acts committed in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity’. The Austrian law extends to denial of the ‘nationalist socialist genocide or other national socialist crimes against humanity’. The Austrian law extends to cover the gross trivialisation, approval or justification of the same. The German law is similar.

In a twist on such laws, Poland adopted an Amendment to the Act on the Institute of National Remembrance of 2018 that criminalized public speech attributing responsibility for the Holocaust to Poland or the Polish nation. Following international criticism of the impact on freedom of speech, academic freedom, and the capacity to debate alleged Polish collaboration with the Nazi authorities, the relevant provisions were repealed in less than a year.

267 https://transparency.fb.com/policies/community-standards/hate-speech/

268 See generally L. Hennebel and T. Hochmann (eds.), Genocide Denials and the Law (2011); G. Lewy, Outlawing Genocide Denial: The Dilemmas of Official Historical Truth (2014); and R. Bilali, Y. Iqbal and S. Freel, ‘Understanding and Counteracting Genocide Denial’, in L. Newman (ed.), Confronting Humanity at its Worst: Social Psychological Perspectives on Genocide (2019) 284.

The following excerpts from Frederick Schauer, ‘The Exceptional First Amendment’, in Michael Ignatieff (ed.), American Exceptionalism and Human Rights (2005), at 32, underscore the breadth of the concept.

... Although the label “hate speech” tends to be applied capaciously, the phrase can be understood as encompassing four distinct but interrelated freedom of speech issues. First, there is the question of the legitimacy of prohibiting various racial, ethnic, and religious epithets [n*****], wog, kike, paki, kaffir, and the like words whose use, except as ironic self-reference by members of those groups, is invariably intended to harm, to offend, and to marginalize. Second, the question of hate speech sometimes involves the issue of restrictions on circulating certain demonstrably false factual propositions about various racial or religious groups, with prohibitions on Holocaust denial being the most common example. A third hate speech issue arises with respect to laws prohibiting the advocacy of or incitement to racial or religious intolerance, hatred, or violence, as with explicit calls to race-based violence, explicit appeals for racial exclusion, and explicit calls for repatriation of members of racial or religious minorities to the countries of their ancestry. Finally, hate speech questions are presented, especially in the context of gender when it is argued that epithets, and occasionally pictures, create a hostile, and therefore marginalizing or excluding, workplace or educational or cultural environment.

... The precise form of attempting to control hate speech by law varies considerably among the nations of the world. Germany and Israel, among other countries, ban the Nazi Party and its descendants, as well as prohibiting other political parties whose programs include racial hatred, racial separation, and racial superiority.’ ... Germany, Israel, and France are among the nations that prohibit the sale and distribution of various Nazi items, including swastikas, Nazi flags, and, on occasion, images of Adolph Hitler and copies of Mein Kampf.’ ... Canada, Germany, and France, along with others, permit sanctions against those who would deny the existence of the Holocaust.’ ... The Netherlands outlaws public insults based on race, religion, or sexual preference.” ... And South Africa, New Zealand, Australia, Canada, the United Kingdom, and all of the Scandinavian countries, among many others, follow the mandates of Article 20(2) of the [ICCPR], and Articles 4(a) and 4(b) of the [ICERD], by making it a crime to engage in the incitement to racial, religious, or ethnic hatred or hostility.

FAURISSON V. FRANCE

VIEWS OF THE HUMAN RIGHTS COMMITTEE, COMMUNICATION NO. 550/1993, UN DOC. CCPR/C/58/D/550/1993 (8 NOVEMBER 1996)

[Robert Faurisson, author of the communication and a former professor of literature, was removed from his university chair in 1991. He had expressed doubt about or denial of the accuracy of conventional accounts of the Holocaust, including (1) his conviction that there were no homicidal gas chambers for the extermination of Jews in Nazi concentration camps, (2) his doubts over the number of people killed, and (3) his disbelief in the records and evidence of the Nuremberg trial that were used to convict Nazis.

In 1990, the French legislature passed the so-called ‘Gayssot Act’. It amended the 1881 law on Freedom of the Press by adding Article 24 bis, which made it an offence to contest (contestation) the existence of the category of crimes against humanity as defined in the London Charter of 1945, on the basis of which Nazi leaders were convicted by the International Military Tribunal at Nuremberg in 1945–1946. For the relevant provision of the Charter and excerpts from the Nuremberg judgment, see Ch. 2D, above.

Faurisson attacked the 1990 law as a threat to academic freedom, including freedom of research and expression. He claimed that the Gayssot Act raised to the rank of infallible dogma the proceedings and verdict at Nuremberg, and endorsed forever the orthodox Jewish version of the Second World War. Arguing that the Nuremberg records could not be treated as infallible, he cited examples of historical revision such as the Katyn massacre in Poland of Polish army officers that was initially attributed to Germans but that was later shown to

be of Soviet responsibility. Faurisson described as ‘exorbitant’ the ‘privilege of censorship’ from which the representatives of the Jewish community in France benefitted.

The state party noted that anti-racism legislation adopted by France in the 1980s was considered insufficient to bring legal action against the trivialization of Nazi crimes. There was governmental concern over ‘revisionism’ by individuals justifying their writing through their status as historians. The French Government viewed these revisionist theses as a ‘subtle form of contemporary anti-semitism’. The Gayssot Act was meant to fill a legal vacuum while defining the new criminal conduct as precisely as possible.

Associations of French resistance fighters and of deportees to German concentration camps filed a private criminal action against Faurisson, who was convicted in 1991 of violating the Gayssot Act. The Court of Appeal of Paris upheld the conviction and imposed a fine. Faurisson took the position that further appeal to the Court of Cassation would be futile and filed the present communication. He argued that the Act violated the ICCPR, although his communication did not invoke specific provisions.

In addition to the Final Views of the ICCPR Committee itself, there were five individual opinions signed by seven Committee members.]

9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3(a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.

9.5 ... [T]he Committee concludes … that the finding of the author’s guilt [in the French proceedings] was based on his following two statements: ‘... I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers … I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication’. His conviction therefore did not encroach upon his right to hold and express an opinion in general. Rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author’s case by the French courts, is in compliance with the provisions of the Covenant.

9.6 To assess whether the restrictions … were applied for the purposes provided for by the Covenant, the Committee … [notes that permissible] restrictions … may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served [sic] the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. [They were therefore permissible.]

9.7 Lastly the Committee needs to consider whether the restriction of the author’s freedom of expression was necessary. The Committee noted the State party’s argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of … the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism ... . [T]he Committee is satisfied that the restriction of Mr. Faurisson’s freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant.

10. [The Committee found there had been no violation by France of Article 19(3).]

STATEMENT OF THOMAS BUERGENTHAL

As a survivor of the concentration camps of Auschwitz and Sachsenhausen whose father, maternal grandparents and many other family members were killed in the Nazi Holocaust, I have no choice but to recuse myself from participating in the decision of this case.

INDIVIDUAL OPINION BY NISUKE ANDO (CONCURRING)

... In my view the term ‘negation’ (‘contestation’), if loosely interpreted, could comprise various forms of expression of opinions and thus has a possibility of threatening or encroaching the right to freedom of expression, which constitutes an indispensable prerequisite for the proper functioning of a democratic society.

In order to eliminate this possibility it would probably be better to replace the Act with a specific legislation prohibiting well-defined acts of anti-semitism or with a provision of the criminal code protecting the rights or reputations of others in general.

I

NDIVIDUAL

O

PINION BY ELIZABETH EVATT AND DAVID KRETZMER, CO-SIGNED BY ECKART KLEIN (CONCURRING)

3 ... . While we entertain no doubt whatsoever that the author’s statements are highly offensive both to Holocaust survivors and to descendants of Holocaust victims (as well as to many others), the question under the Covenant is whether a restriction on freedom of expression in order to achieve this purpose may be regarded as a restriction necessary for the respect of the rights of others.

...

7. The Committee correctly points out, as it did in its General Comment 10, that the right for the protection of which restrictions on freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of a community as a whole. This is especially the case in which the right protected is the right to be free from racial, national or religious incitement ... . It appears … that the restriction on the author’s freedom of expression served to protect the right of the Jewish community in France to live free from fear of incitement to antisemitism ... .

8. The power given to States parties under article 19, paragraph 3, to place restrictions on freedom of expression, must not be interpreted as license to prohibit unpopular speech, or speech which some sections of the population find offensive. Much offensive speech may be regarded as speech that impinges on one of the values mentioned in article 19, paragraph 3(a) or (b) (the rights or reputations of others, national security, ordre public, public health or morals). The Covenant therefore stipulates that the purpose of protecting one of those values is not, of itself, sufficient reason to restrict expression. The restriction must be necessary to protect the given value. This requirement of necessity implies an element of proportionality. The scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect ... .

9. The Gayssot Act is phrased in the widest language and would seem to prohibit publication of bona fide research connected with matters decided by the Nuremburg Tribunal. Even if the purpose of this prohibition is to protect the right to be free from incitement to anti-semitism, the restrictions imposed do not meet the proportionality test. They do not link liability to the intent of the author, nor to the tendency of the publication to incite to anti-semitism. Furthermore, the legitimate object of the law could certainly have been achieved by a less drastic provision that would not imply that the State party had attempted to turn historical truths and experiences into legislative dogma that may not be challenged, no matter what the object behind that challenge, nor its likely consequences. In the present case we are not concerned, however, with the Gayssot Act, in abstracto, but only with the restriction placed on the freedom of expression of the author by his conviction for his statements in the interview in Le Choc du Mois. Does this restriction meet the proportionality test?

10. The French courts examined the author’s statements in great detail. Their decisions, and the interview itself, refute the author’s argument that he is only driven by his interest in historical research. … While there is every reason to maintain protection of bona fide historical research against restriction, even when it challenges accepted historical truths and by so doing offends people, anti-semitic allegations of the sort made by the author, which violate the rights of others in the way described, do not have the same claim to protection against restriction. The restrictions placed on the author did not curb the core of his right to freedom of expression, nor did they in any way affect his freedom of research ... . It is for these reasons that we joined the Committee ... .

In a 2015 ECtHR Grand Chamber case, Perinçek v. Switzerland (Application No. 27510/08, Judgment of 15 October 2015), a Turkish politician had been convicted in Switzerland for publicly asserting that the mass deportations and massacres of Armenians in the Ottoman Empire in 1915 had not amounted to genocide. 269 The Swiss courts held that Perinçek’s motives were racist and nationalistic and that his statements did not

269 See generally, M. D. Baer, Sultanic Saviors and Tolerant Turks: Writing Ottoman Jewish History, Denying the Armenian Genocide (2020).

contribute to the historical debate. The European Court found that freedom of expression (Article 10) had been violated. It found that the dignity of the victims and the dignity and identity of modern-day Armenians were protected by the right to respect for private life (Article 8), but that a balance had to be struck with Article 10, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved. It concluded that it had not been necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the case. In particular, the Court took into account that: the applicant’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; the context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland; the statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland; there was no international law obligation for Switzerland to criminalise such statements; the Swiss courts appeared to have censured the applicant simply for voicing an opinion that diverged from the established ones in Switzerland; and the interference with his right to freedom of expression had taken the serious form of a criminal conviction.

In Pastörs v. Germany (Application No. 55225/14, Judgment of 3 October 2019) the ECtHR considered a case brought by a Member of Parliament in Mecklenburg-Western Pomerania against his criminal conviction in Germany for a speech he gave in parliament on 28 January 2010, one day after Holocaust Remembrance Day. He said, inter alia:

“… [P]people can sense that the so-called Holocaust is being used for political and commercial purposes ... Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties … . Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping … for the triumph of lies over truth.”

The European Court upheld the conviction:

46. The Court attaches fundamental importance to the fact that the applicant planned his speech in advance, deliberately choosing his words and resorting to obfuscation to get his message across: a qualified Holocaust denial showing disdain towards the victims of the Holocaust and running counter to established historical facts … . …

47. While interferences with the right to freedom of expression call for the closest scrutiny when they concern statements made by elected representatives in Parliament, utterances in such scenarios deserve little, if any, protection if their content is at odds with the democratic values of the Convention system. …

48. … [T]he applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis, the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.

In response to the Faurisson case, consider the following views of Christopher Caldwell, in ‘Historical Truth Speaks for Itself’, Financial Times (18 February 2006):

Madeleine Reberioux, the late leftist historian, warned of the biggest danger of the Gayssot law as soon as it was passed. “One day”, she wrote, “it’s going to lead into other areas besides the genocide against the Jews other genocides and other assaults on what will be called ‘historical truth’.” She was right. A law declaring the Turkish killings of Armenians early last century to be a “genocide” was passed in 2001; later that year, another law defined the slave trade as a “crime against humanity”; a year ago, legislation mandated that teachers stress the “positive role” of the French presence in North Africa. Each new officialisation of remembrance calls into being more “moral lobbies”, which press their claims with ever more insistence in ever more obscure corners of political life and with ever more legal clout.

Mr Dworkin’s case [below] for abolishing laws against Holocaust denial on grounds of political legitimacy is the right one. Of course, no one should be under the illusion that being able to go out and deny the Holocaust will add much to any “debate”. The official truth of western governments about the Holocaust happens to be the truth. Allowing delusions or anti-Semitic propaganda to masquerade as “opinions” will not change that. So those western countries with laws against Holocaust denial are now in a tricky position. They must undo laws that have proved unworkable and counterproductive and at a moment when some of those laws’ most vocal detractors are violent people of ill will.

The difficulty of developing international standards in this area has been analysed in terms of five internal features of the right:

MONA ELBAHTIMY, THE RIGHT TO BE FREE FROM THE HARM OF HATE SPEECH IN INTERNATIONAL HUMAN RIGHTS LAW (2021) 179

… [The first is an ‘emotive’ component. The] right obliges states to make their national laws intolerant of an extreme emotion – hatred – if its advocacy incites, inter alia, the emotional harm of hostility towards targeted groups. In this sense, the key terms ‘hatred’ and ‘hostility’ construct the meaning of the right. However, both terms are unrelated to concrete practice, being concerned instead with intangible states of mind, attitudes, and psychological states of abhorrence, detestation, and enmity. …

The right’s second feature relates to the nature of the causal or likelihood-based relationship between advocacy of hatred and its alleged harms, which is indirect, cumulative, and mentally and emotionally mediated. … [P]roving the inciting nature of hate advocacy [is complex], given the difficulties in precisely or empirically establishing and measuring incitement … .

[Third,] … a very delicate balance [must] be struck between the equality and liberty rights of speakers and members of targeted groups … . … The interaction of the two values … is multifaceted and complex. The right takes effect by restricting speakers’ freedom of expression. Yet liberty as a value is not enhanced only through the protection of a wider range of expressions; liberty can be at risk for members of targeted groups if they are not provided with protection against the harms of hate speech, as this can have a ‘silencing effect’ on them. …

[The fourth feature] is its ‘group identity’ aspect. … The right is integral to the promotion of collective goals, the prevention of communal harms, and the protection of group identities. It therefore adds another source of tension between individual and group rights. Drawing a sharp dividing line between the two categories of protection (the individualized and the collective) is inherently difficult, given that hate speech targets individuals based on their group-defining characteristics or identity. …

The … fifth feature [is the religion component. A] delicate, and often very difficult, balance has to be struck between freedom of religious expression, on the one hand, and protection for targeted religious adherents, on the other. This further complicates the precise determination of the threshold beyond which advocacy of religious hatred should be prohibited … .

… The way ahead

… It does not appear possible to secure broad agreement on an approach that moves beyond the current level of abstraction by adding specificity to the content and effects of proscribed advocacy of hatred. …

… [T]o overcome such paralysis, one strategy is [to focus on procedures] … This approach would not answer the difficult question of what the precise legal threshold of Article 20(2) is; rather, it would address how to determine such threshold within different national contexts. National authorities need sufficient guidance in implementing their obligations under IHRL to prohibit incitement to hatred. Such guidance is an important factor in the avoidance of excessively prohibitive laws that suppress legitimate speech, inconsistent implementation of laws, and restrictive interpretations of laws in ways that thwart the obligation’s preventive function – its central value from a policy perspective. Rather than legal or textual development, the efforts of the international community might instead be directed towards the provision of such guidance to states in the form of a procedural manual for enforcement of the right to protection from incitement to hatred. This would allow states to take into consideration their own national contexts when seeking to resolve the threshold dilemmas and inherent tensions underlying the five internal features of the right.

Procedural development … provides a jurisdiction-specific response to that phenomenon. This can best be described as regulatory relativism, in which the means of achieving protection of the right is best determined in accordance with the particular context involved.

[Relativist challenges arise in relation to each of the five internal features of the right.]

Accordingly, despite the fact that hate speech is generally recognized as a universal problem, it is a problem in which particularized political, cultural, and historical national contexts play a crucial role. The hate speech phenomenon is not a static problem, but one which needs to be seen as a dynamic social process involving context. …

There are striking variations, even among liberal democracies, when it comes to the hate speech legal landscape. Different criteria are applied to define the threshold between free speech and hate speech. The legislative patterns and judicial practices related to the resolution of the hate speech problem are predicated upon different conceptions of the content of prohibited expressions, the scope of recognized harms of hate speech, the extension of protection to groups and to group-defining characteristics, the range of groups protected, and the standards of causality between advocacy of hatred and its alleged harms. The prohibition of hate advocacy that constitutes clear and unambiguous incitement to immediate violence or illegal acts is the aspect of the norm that enjoys most transnational resonance, since it easily crosses cultural and ideological boundaries. However, legal regulation of hate advocacy that falls short of incitement to violence but creates a social climate conducive to hostility and discrimination does not enjoy the same universal resonance. …

QUESTIONS

1. Two of the concurring opinions in Vejdeland acknowledge hesitation in agreeing with the Court’s opinion. How convincing do you find the Court’s analysis? Is it a major victory for the rights of the LGBTQI community or a slippery slope for inroads against freedom of expression in relation to contested issues?

2. As a legislator, would you have voted for the Gayssot Act? How would you have reacted to the following argument in general, or as applied to the passage of that Act?

… [I]f there is any right which enjoys primacy among rights, it is arguably the principle of equality and non-discrimination ... . The goal of hate mongers is to convince others that the members of the target group are not entitled to equal protection of the law; the hate mongers seek a society of discrimination ... . They should not be entitled to claim protection under the right to freedom of expression for their abuse of speech rights to achieve that goal.270

3. Would a conviction by French courts be likely to be upheld under the Committee’s approach? Under the concurring opinion by Elizabeth Evatt and David Kretzmer? How do these opinions differ, and which do you view as the better one?

4. Does Elbahtimy’s ‘regulatory relativism’ approach provide an appropriate solution, or might it risk the proliferation of contextually justified bans that would undermine aspirations to achieve a common approach internationally?

NOTE ON THE UNITED STATES

The United States ratified the ICCPR in 1992. In giving its consent to ratification, and acting consistently with proposals made to it by the Bush Administration, the Senate entered a reservation: ‘Article 20 does not authorize or require legislation or other action by the United States that would restrict the right to free speech and association protected by the Constitution and laws of the United States.’

Compare with Article 20 an equivalent provision, Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD). In that article, the states parties ‘condemn all propaganda … based on ideas or theories of superiority of one race or group of persons or one colour or ethnic origin’. They undertake to declare a punishable offence ‘all dissemination of ideas based on racial superiority or hatred, incitement of racial discrimination, as well as all acts of violence’ against such a race or group. Article 1 defines ‘racial discrimination’ to mean any distinction based on ‘race, colour, descent, or national or ethnic origin’ that has the purpose or effect of impairing equal enjoyment of rights ‘in the political, economic, social, cultural or any other field of public life’. When the United States ratified the CERD Convention, it reserved as to Article 4.

The primary constitutional provision referred to in these two reservations by the United States is the First Amendment: ‘Congress shall make no law … abridging the freedom of speech ... .’ Consider the following analysis by Fredrick Schauer, in ‘The Exceptional First Amendment’, in Michael Ignatieff (ed.), American Exceptionalism and Human Rights (2005), at 29:

... [A]lthough a constitutional or quasi-constitutional right to freedom of expression is the international norm, the contours of that right vary widely even among liberal democracies … . … [T]he American First Amendment, as authoritatively interpreted, remains a recalcitrant outlier to a growing international understanding of what the freedom of expression entails. In numerous dimensions, the American approach is exceptional ... . ...

… [T]he American understanding is that principles of freedom of speech do not permit government to distinguish protected from unprotected speech on the basis of the point of view espoused. Specifically, this prohibition on what is technically called “viewpoint discrimination” extends to the point of view that certain races or religions are inferior, to the point of view that hatred of members of minority races and religions is desirable, and to the point of view that violent or otherwise illegal action is justified against people

270 S. Farrior, ‘Moulding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech’, 14 Berkeley J. Int’l. L. 1 (1996), at 6, 98.

because of their race, their ethnicity, or their religious beliefs. … [The government may not] prohibit public denials of the factuality of the Holocaust just because of the demonstrable falsity of that proposition and the harm that would ensue from its public articulation.

… [Brandenburg v. Ohio, 395 U.S. 444 (1969)] stands for the proposition that in the United States restrictions on the incitement of racial hatred can be countenanced under the First Amendment only when they are incitements to violent racial hatred, and even then only under the rare circumstances in which the incitements unmistakably call for immediate violent action, and even then only under the more rare still circumstances in which members of the listening audience are in fact likely immediately to act upon the speaker’s suggestion... . Jean Le Pen could not be sanctioned in the United States, as he was in France, for accusing Jews of exaggerating the Holocaust … .

... Where in the rest of the world freedom of expression appears to be understood as an important value to be considered along with other important values of fairness, equality, dignity, health, privacy, safety and respect, among others, in the United States the freedom of expression occupies pride of place, prevailing with remarkable consistency in its conflicts with even the most profound of other values and the most important of other interests.

Blasphemy

In Otto-Preminger-Institut v. Austria, Ser. A, No. 295-A (20 September 1994), the European Court of Human Rights decided 6-3 that the seizure and forfeiture of a blasphemous film did not violate the freedom of expression guaranteed by Article 10. The applicant association had advertised the screening of the film, Das Liebeskonzil, based on an 1894 play, which:

... portrays the God of the Jewish religion, the Christian religion and the Islamic religion as an apparently senile old man prostrating himself before the devil with whom he exchanges a deep kiss and calling the devil his friend ... . Other scenes show the Virgin Mary permitting an obscene story to be read to her and the manifestation of a degree of erotic tension between the Virgin Mary and the devil. The adult Jesus Christ is portrayed as a low grade mental defective and in one scene is shown lasciviously attempting to fondle and kiss his mother’s breasts, which she is shown as permitting.

The film was presented by the association as a ‘satirical tragedy’. ‘Trivial imagery and absurdities of the Christian creed are targeted in a caricatural mode and the relationship between religious beliefs and worldly mechanisms of oppression is investigated.’ The Innsbruck Regional Court in Austria ordered seizure and forfeiture of the film under Section 188 of the Austrian Penal Code for the criminal offence of ‘disparaging religious precepts’. The criminal proceedings against the association were eventually dropped.

Since there was no dispute that the seizure constituted an interference with the association’s freedom of expression, the European Court considered whether the seizure was permissible under the conditions set by of Article 10, paragraph 2. The Court concluded that the interference had the ‘legitimate aim’ of protecting the rights of others to freedom of religion. Interpreting Article 9 of the Convention to include the right to respect for one’s religious feelings, the Court found that such considerations outweighed the film’s contribution to public debate. The Court reasoned:

The respect for the religious feelings of believers as guaranteed in Article 9 can legitimately thought to have been violated by provocative portrayals of objects of religious veneration; and such portrayals can be regarded as malicious violation of the spirit of tolerance, which must also be a feature of democratic society. The Convention is to be read as a whole and therefore the interpretation and application of Article 10 in the

present case must be in harmony with the logic of the Convention ... . [T]he Court accepts that the impugned measures pursued a legitimate aim under Article 10 para. 2, namely ‘the protection of the rights of others’.

The Court stressed that freedom of expression applies not only to ideas that are favourably received, but also to those ‘that shock, offend or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society.”‘ Nonetheless, people exercising their rights under Article 10 were subject to duties, among which could legitimately be included ‘an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of further progress in human affairs’.

The Court determined that the seizure could be considered ‘necessary in a democratic society’. There was no ‘uniform conception of the significance of religion in society’ throughout Europe, ‘even within a single country’. A ‘certain margin of appreciation is therefore to be left to the national authorities in assessing the existence and extent of the necessity of such interference’. It is ‘for the national authorities, who are better placed than the international judge, to assess the need for such a measure in the light of the situation obtaining locally’. Given that the Tyrolean population was 87 percent Roman Catholic, the Court found that the Austrian authorities had acted within their margin of appreciation ‘to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.’

Three judges dissented. Given the precautions against offence to viewers taken by the association through a warning announcement, the showing of the film to a paid audience only, and the restriction of viewing to those over 17 years of age, the dissent found the seizure and forfeiture to be disproportionate to the aim pursued, and thus not necessary in a democratic society.

In Wingrove v. United Kingdom, European Court of Human Rights (Application No. 17419/90, Judgment of 25 November 1996), a film director who was a British national alleged that the United Kingdom had violated Article 10 by interfering with the director’s freedom of expression through refusing to grant a distribution certificate for his 18-minute video work, Visions of Ecstasy. The work involved visions of St Teresa about the crucified Christ, and in the view of the British Board of Film Classification, drew Christ graphically into the erotic desire of St Teresa. The refusal to grant the certificate was based on the Board’s conclusion that the video constituted blasphemy, defined in a recent case as ‘any contemptuous, reviling, scurrilous or ludicrous matter related to God, Jesus Christ or the Bible’. The decision was upheld by the Video Appeals Committee.

The European Commission voted 14–2 that there had been a violation of Article 10. The Commission and the United Kingdom brought the case before the European Court, which concluded by a 7–2 vote that there had been no violation of Article 10. Some of its observations about the requirement in Article 10 that a restriction be ‘necessary in a democratic society’ follow:

57. The Court observes that the refusal to grant Visions of Ecstasy a distribution certificate was intended to protect ‘the rights of others’, and more specifically to provide protection against seriously offensive attacks on matters regarded as sacred by Christians ... .

... [B]lasphemy legislation is still in force in various European countries. It is true that the application of these laws has become increasingly rare and that several States have recently repealed them altogether ... . Strong arguments have been advanced in favour of the abolition of blasphemy laws, for example, that such laws may discriminate against different faiths or denominations ... . However, the fact remains that there is as yet not sufficient common ground in the legal and social orders of the member States of the Council of Europe to conclude that a system whereby a State can impose restrictions on the propagation of material on the basis that it is blasphemous is, in itself, unnecessary in a democratic society and thus incompatible with the Convention ... .

58. … [A] wider margin of appreciation is generally available to the Contracting States when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion. Moreover, … there is no uniform European conception of the requirements of ‘the protection of the rights of others’ in relation to attacks on their religious convictions. What is likely to cause substantial offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever growing array of faiths and denominations. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements with regard to the rights of others as well as on the ‘necessity’ of a ‘restriction’ intended to protect from such material those whose deepest feelings and convictions would be seriously offended ...

This does not of course exclude final European supervision. Such supervision is all the more necessary given the breadth and open-endedness of the notion of blasphemy and the risks of arbitrary or excessive interferences with freedom of expression under the guise of action taken against allegedly blasphemous material ... . Moreover the fact that the present case involves prior restraint calls for special scrutiny by the Court ... .

The Court (para. 50) also considered the fact that the English law of blasphemy ‘only extends to the Christian faith’. It was not, however, for the European Court ‘to rule in abstracto’ about the compatibility of British law with the Convention. ‘The extent to which English law protects other beliefs is not in issue before the Court which must confine its attention to the case before it ... . The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context.’ A concurring opinion of Judge Pettiti observed that the Convention left ‘scope for review under Article 14. In the present case no complaint had been made to the European Court under that article.’

A dissenting opinion of Judge Lohmus noted that the law of blasphemy ‘only protects the Christian religion and, more specifically, the established Church of England ... . This in itself raises the question whether the interference was (in the language of Article 10) “necessary in a democratic society”.’

QUESTION

Do these opinions resolve the question of who in the liberal state must show tolerance to whom? Must the majority put up with the minority’s views and modes of expression (at least where those views and expressions are not ‘forced’ on the majority through unavoidable public acts)? Or is it the minority that must take account of the majority’s sensibility and refrain from offending it?

THE DANISH CARTOONS AND DEFAMATION OF RELIGION

In 2005, a Danish newspaper named Jyllands-Posten published cartoons that proved to be offensive to many Muslims. They consisted of unflattering and mocking notions about Muslims and caricatures of the Prophet Mohammed, including a cartoon portraying Mohammed wearing a turban in the shape of a bomb ready to explode an obvious reference to terrorist acts committed in the name of Islam. The controversy led to widespread protests and riots, the severing of diplomatic relations between an Arab state and Denmark, death threats against the cartoonists and others involved and far-reaching trade boycotts by some states of Danish goods. The cartoons were republished by newspapers in several European countries, including France, Germany, Italy, the Netherlands, Spain and Switzerland. By contrast, most major newspapers in the United

States, Canada and the United Kingdom refrained from republication, although the cartoons were rapidly available on the internet.

The protests were the stronger because many Muslims understand that Islam bans any image, let alone caricature, of the Prophet; such images are often viewed as blasphemous. As Ruti Teitel noted at the time:

Many people saw the cartoons as ... exhibiting intolerance toward those whose religion is Islam ... . To understand why so many Muslims were so gravely offended, it is important to see that the cartoons don’t stand alone, but rather were published against a backdrop of political and legislative action that, to many Muslims, reflects a repeated pattern of disparagement of Islam in the public sphere. At present, Europe is struggling with issues of identity ... . The crisis arises because of new demographics, at the same time as new regionalism. Many Muslims feel they are being relegated to second-class citizenship in Europe. And they relate the publication of the cartoons by a newspaper they feel would not consider publishing anti-Christian or anti-Jewish cartoons to this wrongful sense that they are not full citizens.271

In the wake of the diplomatic outcry the Danish Prime Minister refused to meet with a group of eleven ambassadors from Muslim-majority countries. The government responded that ‘freedom of expression has a wide scope and the Danish government has no means of influencing the press.’ It added that blasphemy was, however, prohibited under Danish law and that offended parties could bring suit if they wished. A subsequent complaint was dismissed by the public prosecutor. The Egyptian Minister of Foreign Affairs called for ‘an official Danish statement underlining the need for and the obligation of respecting all religions and desisting from offending their devotees to prevent an escalation which would have serious and far-reaching consequences.’ No such statement was forthcoming. The following year, the Organization of the Islamic Conference (OIC), representing 57 states with significant Muslim populations, established an OIC Observatory on Islamophobia. It tracked developments worldwide including, for example, the 2008 movie, Fitna, in which a Dutch politician, Geert Wilders, interspersed excerpts from the Qur’an with media images of acts of hatred or violence attributed to Muslims, and the March 2011 burning by a Florida pastor of a Qur’an. The Observatory’s 2011 report stated that ‘[t]he scourge of Islamophobia continued unabated, despite all efforts to raise awareness of its dangers and the need to contain it’ and concluded that ‘Islamophobia remains a matter of transcendental priority for the OIC.’

The OIC’s principal response to the problem at the international level took the form of a campaign begun in 1999 to combat the ‘defamation of religions’. Over a number of years, resolutions were adopted by contested votes in the UN Human Rights Council and the General Assembly. GA Resolution 62/154 (18 December 2007), adopted by a vote of 108 in favour, 51 against and 25 abstentions, is representative:

The General Assembly,

2. Expresses its deep concern about the negative stereotyping of religions and manifestations of intolerance and discrimination in matters of religion or belief still in evidence in the world;

3. Strongly deplores physical attacks and assaults on businesses, cultural centres and places of worship of all religions as well as targeting of religious symbols;

4. Expresses its deep concern about programmes and agendas pursued by extremist organizations and groups aimed at the defamation of religions and incitement to religious hatred, in particular when condoned by Governments;

271 R. G. Teitel, ‘No Laughing Matter: The Controversial Danish Cartoons Depicting the Prophet Mohammed, and Their Broader Meaning for the Europe ‘s Public Square’, New York Law School Digital Commons (15 February 2006).

5. Also expresses its deep concern that Islam is frequently and wrongly associated with human rights violations and terrorism;

6. Notes with deep concern the intensification of the campaign of defamation of religions and the ethnic and religious profiling of Muslim minorities in the aftermath of the tragic events of 11 September 2001;

7. Recognizes that, in the context of the fight against terrorism and the reaction to counter-terrorism measures, defamation of religions and incitement to religious hatred becomes an aggravating factor that contributes to the denial of fundamental rights and freedoms of members of target groups, as well as their economic and social exclusion;

8. Deplores the use of the print, audio-visual and electronic media, including the Internet, and any other means to incite acts of violence, xenophobia or related intolerance and discrimination against Islam or any other religion, as well as targeting of religious symbols;

9. Stresses the need to effectively combat defamation of all religions and incitement to religious hatred, against Islam and Muslims in particular;

10. Emphasizes that everyone has the right to hold opinions without interference and the right to freedom of expression, and that the exercise of these rights carries with it special duties and responsibilities and may therefore be subject to limitations as are provided for by law and are necessary for respect of the rights or reputations of others, protection of national security or of public order, public health or morals and respect for religions and beliefs;

11. Urges States to take action to prohibit the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence;

12. Also urges States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions, to take all possible measures to promote tolerance and respect for all religions and beliefs and the understanding of their value systems and to complement legal systems with intellectual and moral strategies to combat religious hatred and intolerance;

13. Urges all States to ensure that all public officials, including members of law enforcement bodies, the military, civil servants and educators, in the course of their official duties, respect people regardless of their different religions and beliefs and do not discriminate against persons on the grounds of their religion or belief, and that any necessary and appropriate education or training is provided;

14. Underscores the need to combat defamation of religions and incitement to religious hatred by strategizing and harmonizing actions at the local, national, regional and international levels through education and awareness-raising; ...

The concept that a religion could be defamed was subsequently hotly debated in various UN fora. In April 2009, for example, three UN Special Rapporteurs (dealing with racism, freedom of religion and freedom of expression) issued a joint statement:

We have repeated time and again that all human rights are universal, indivisible and interdependent and interrelated. Yet nowhere is this interdependence more obvious than in the discussion of freedom of expression and incitement to racial or religious hatred. The right to freedom of expression constitutes an essential aspect of the right to freedom of religion or belief and therefore needs to be adequately protected in domestic

legislation. Freedom of expression is essential to creating an environment in which a critical discussion about religion can be held. While the exercise of freedom of expression could in some extreme cases affect the right to manifest the religion or belief of certain identified individuals, it is conceptually inaccurate to present “defamation of religions” in abstracto as a conflict between the right to freedom of religion or belief and the right to freedom of opinion or expression.

In recent years, there have been challenges with regard to the dissemination of expressions which offend certain believers ... . [A] clear distinction shall be made between three types of expression: (1) expressions that constitute an offence under international law; (2) expressions that are not criminally punishable but may justify a civil suit; and (3) expressions that do not give rise to criminal or civil sanctions but still raise a concern in terms of tolerance, civility and respect for the religion or beliefs of others ... .

Whereas the debate concerning the dissemination of expressions which may offend certain believers has throughout the last ten years evolved around the notion of “defamation of religions”, we welcome the fact that the debate seems to be shifting to the concept of “incitement to racial or religious hatred”, sometimes also referred to as “hate speech”

Indeed, the difficulties in providing an objective definition of the term “defamation of religions” at the international level make the whole concept open to abuse. At the national level, domestic blasphemy laws can prove counter-productive, since this could result in the de facto censure of all inter-religious and intra-religious criticism. Many of these laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of laws that are fairly neutral.

Whereas some have argued that “defamation of religions” could be equated to racism, we would like to caution against confusion between a racist statement and an act of “defamation of religion”. We fully concur with the affirmation from the ICERD that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous. However, there is not necessarily an analogy to be drawn with regard to religious issues. Indeed, several religions are characterized by truth claims or even by superiority claims which have been traditionally accepted as part of their theological grounds. Consequently, the elements that constitute a racist statement may not be the same as those that constitute a statement “defaming a religion” as such. To this extent, the legal measures, and in particular the criminal measures, adopted by national legal systems to fight racism may not necessarily be applicable to “defamation of religions” ... .272

In 2010, the Special Rapporteur on freedom of religion welcomed the fact that the United Kingdom had recently abolished the offences of blasphemy and blasphemous libel, but also noted that the Indonesian Constitutional Court had upheld an anti-blasphemy law ‘which imposes criminal penalties of up to five years imprisonment on individuals who deviate from the basic teachings of the official religions.’273

In 2011, the UN Human Rights Committee adopted General Comment No. 34 on Article 19: Freedoms of opinion and expression, in which it observed (in para. 48) that:

Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2, of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17,

272 http://www2.ohchr.org/english/issues/racism/rapporteur/docs/Joint_Statement_SRs.pdf.

273 UN Doc. A/65/207 (29 July 2010), para. 44.

18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

In response to these debates, in 2011 the UN Human Rights Council adopted by consensus a resolution (Res. 16/18 of 24 March 2011) that omitted all references to defamation and drew directly upon proposals put forward by the OIC. It called on states ‘to foster a domestic environment of religious tolerance, peace and respect, by’:

(a) Encouraging the creation of collaborative networks to build mutual understanding, promoting dialogue and inspiring constructive action towards shared policy goals and the pursuit of tangible outcomes ...;

(b) Creating an appropriate mechanism within Governments to, inter alia, identify and address potential areas of tension between members of different religious communities, and assisting with conflict prevention and mediation;

(c) Encouraging training of Government officials in effective outreach strategies;

(d) Encouraging the efforts of leaders to discuss within their communities the causes of discrimination, and evolving strategies to counter these causes;

(e) Speaking out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence;

(f) Adopting measures to criminalize incitement to imminent violence based on religion or belief;

(g) Understanding the need to combat denigration and negative religious stereotyping of persons, as well as incitement to religious hatred, by strategizing and harmonizing actions at the local, national, regional and international levels through, inter alia, education and awareness-building;

(h) Recognizing that the open, constructive and respectful debate of ideas, as well as interfaith and intercultural dialogue at the local, national and international levels, can play a positive role in combating religious hatred, incitement and violence; ...

In Ireland, a common law offence of blasphemous libel was reflected in the 1937 Constitution. It was applicable only to Christianity and in 1999 the Irish Supreme Court found it incompatible with the guarantee of religious equality. New legislation, the Defamation Act of 2009, sought to amend the approach but was never enforced. The prohibition of blasphemy was repealed in 2020 following a referendum in 2018 which was supported by 65 percent of those who voted.

RONALD DWORKIN, EVEN BIGOTS AND HOLOCAUST DENIERS MUST HAVE THEIR SAY THE GUARDIAN (14 FEBRUARY 2006)

The British media were right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant more people killed and more property destroyed. It would have caused many British Muslims great pain ... . [T]he public does not have a right to read or see whatever it wants no matter what the cost, and the cartoons are in any case widely available on the internet.

There is a real danger, however, that the decision of British media not to publish, though wise, will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of multiculturalism, and that the government was right after all to propose that it be made a crime to publish anything “abusive or insulting” to a religious group. Freedom of speech is not just a special and distinctive emblem of western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be. Ridicule is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.

So in a democracy no one, however powerful or impotent, can have a right not to be insulted or offended. That principle is of particular importance in a nation that strives for racial and ethnic fairness. If weak or unpopular minorities wish to be protected from economic or legal discrimination by law if they wish laws enacted that prohibit discrimination against them in employment, for instance then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult may legitimately adopt such laws. If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to respect. Whatever multiculturalism means whatever it means to call for increased “respect” for all citizens and groups these virtues would be self-defeating if they were thought to justify official censorship.

Muslims who are outraged by the Danish cartoons point out that in several European countries it is a crime publicly to deny, as the president of Iran has denied, that the Holocaust ever took place. They say that western concern for free speech is therefore only self-serving hypocrisy, and they have a point. But of course the remedy is not to make the compromise of democratic legitimacy even greater than it already is but to work toward a new understanding of the European convention on human rights that would strike down the Holocaust-denial law and similar laws across Europe for what they are: violations of the freedom of speech that that convention demands.

It is often said that religion is special, because people’s religious convictions are so central to their personalities that they should not be asked to tolerate ridicule in that dimension, and because they might feel a religious duty to strike back at what they take to be sacrilege. Britain has apparently embraced that view because it retains the crime of blasphemy, though only for insults to Christianity. But we cannot make an exception for religious insult if we want to use law to protect the free exercise of religion in other ways. If we want to forbid the police from profiling people who look or dress like Muslims for special searches, for example, we cannot also forbid people from opposing that policy by claiming, in cartoons or otherwise, that Islam is committed to terrorism, however silly we think that opinion is. Religion must be tailored to democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be drawn any more than it can legislate about what may or may not be eaten. No one’s religious convictions can be thought to trump the freedom that makes democracy possible.

QUESTIONS

1. What provisions of the ICCPR could you have relied on to seek relief for the publication in a European country of the cartoons? Would it be relevant if you were a resident Muslim in such a country or were a national and resident of a Middle Eastern country?

2. Consider the following critique of General Comment No. 34:

… Article 19(3) expressly permits freedom of expression to be restricted in the name of public morals

No doubt, blasphemy laws do not sit easily with a secular public moral vision. But the reality is that for millions of people (and dozens of countries), religion, and religious devotion is at the heart of their moral compass. Insofar as the public moralities of these countries is concerned, unacceptable irreverence (blasphemy) may be as morally unsayable as hate speech or the “n-word” is in Western Europe or as Holocaust denial is in Germany. De facto then, in these countries, blasphemous speech does offend, in a unique way, against public morality.274

3. Do you agree with the views expressed by Dworkin?

274 N. Cox, ‘Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law’, 35 J. L. and Relig. (2020) 33, at 58.