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Lourdes Peroni Dissertation Submitted with a View to Obtaining the Degree of Doctor of Law Promoter

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Lourdes Peroni Dissertation Submitted with a View to Obtaining the Degree of Doctor of Law Promoter OPENING UP THE EUROPEAN CONVENTION HUMAN RIGHTS SUBJECT: AN INCLUSIVE MULTILAYERED FRAMEWORK FOR ADJUDICATING RELIGIOUS AND CULTURAL CLAIMS Lourdes Peroni Dissertation submitted with a view to obtaining the degree of Doctor of Law Promoter: Professor Dr. Eva Brems Ghent University, Faculty of Law Academic Year 2013-2014 1 ACKNOWLEDGMENTS This Ph.D. has come to fruition thanks to the extraordinary support of many people. My greatest debt is to my supervisor, Eva Brems. There are just no words to express my immense gratitude to you, Eva. I have so much admiration for you and your work that I cannot conceive of a better supervisor. You have been just perfect. Thank you for giving me the opportunity to work within such an exciting project and with such a wonderful team! Thank you for giving me the freedom to search answers beyond the law. Thank you especially for inspiring me with your work and your capacity to think creatively. I owe a special debt to the members of my Ph.D. Follow-up Committee, Professors Françoise Tulkens and Sébastien Van Drooghenbroeck, for their wonderful and crucial guidance throughout the four years. I am also greatly indebted to the members of my Ph.D. Jury for agreeing to be part of it and for making the time to read and evaluate my work. Many thanks to my colleagues of the ERC team – Alexandra Timmer, Laurens Lavrysen, Maris Burbergs, Saïla Ouald Chaib and Stijn Smet – for making the experience so enjoyable in and outside the office. Alexandra, working together on the ‘vulnerability paper’ was definitely one of the highlights of my Ph.D. Laurens, thank you for introducing me to beautiful and fun places in Ghent I would have never discovered by myself. Maris, thanks for your constant words of support and kindness. Saïla, I enjoyed and learned a great deal from the discussions on freedom of religion I had with you. Stijn, this Ph.D. is so much better thanks to you. I am deeply grateful for the multiple times you read each of my Ph.D. Articles and for your eloquent comments. My warm thanks go to Martine Dewulf and Anne Van Beversluys for their incredible support. Martine thanks especially for all the good advice and for those lovely team dinners in your garden. I also owe many thanks to Giselle Corradi for encouraging me to think about the implicit ‘templates’ of human being underlying the Court’s reasoning. And, of course, I would have simply not made it if it were not for the emotional support I received from the other side of the Atlantic. Mami, Papi, Vero, Lupita y Giova, les debo y agradezco tanto! I extend a special thanks to Hebe, Maripaz and Sylke for being so enthusiastic about my Ph.D. topic and for the endless inspiring discussions either in Brussels with Sylke or in Asunción with the three of you. Also, thank you Vero for those holidays that allowed me to come back to my Ph.D. with renewed spirit. Ale thank you for being there always. My Ph.D. research was carried out thanks to the funding of the European Research Council (ERC). Brussels, April 24 2014. 2 PREFACE This doctoral dissertation has been written within the framework of the project ‘Strengthening the European Court of Human Rights: More Accountability through Better Legal Reasoning,’ which is funded by the European Research Council (ERC). Under the leadership of Professor Eva Brems, the project studies the European Court of Human Rights’ case law with the aim of proposing innovative solutions to strengthen the consistency and persuasiveness of the Court’s legal reasoning. One of the project’s major themes is ‘Mainstreaming Diversity.’ Under this theme, the project seeks to include the concerns of non-dominant groups in the Court’s reasoning. This objective grew out of the realization that the Court’s record is at best mixed when it comes to taking into account the diversities of groups such as women, people with disabilities, and religious and cultural minorities. While references to the specificities of these groups are occasionally made in the Court’s reasoning, there is no consistent effort at mainstreaming them, nor a clear methodology or approach to do so. In line with the objective pursued under ‘Mainstreaming Diversity,’ this dissertation seeks to more fully and systematically integrate the concerns of members of non-dominant cultural and religious groups into the Court’s legal reasoning. 3 SUMMARY Like many courts in Europe and elsewhere, the European Court of Human Rights (the ‘Court’ or the ‘Strasbourg Court’) has been grappling with the challenges posed by contemporary cultural and religious diversity. Applicants from a variety of cultural and religious backgrounds have increasingly brought longstanding conceptions underlying the Court’s legal reasoning under growing pressure: from Sikh men wanting to wear the turban to Roma members seeking to preserve their travelling lifestyle and Muslim women battling headscarf bans. Three provisions of the European Convention on Human Rights (‘ECHR’) have been the site where this pressure has been most vividly felt: non-discrimination (Article 14 ECHR), freedom of religion (Article 9 ECHR), and the right to respect for one’s cultural lifestyle (Article 8 ECHR). For the most part, however, the Court has failed to rise to the challenge. At times, these types of claims have been met with neglect; at others, with trivialization and even delegitimation. This dissertation addresses these shortcomings in the legal reasoning of the European Court of Human Rights. The research is motivated by two sets of questions. At a descriptive level, the questions are: What are the assumptions or conceptions implicitly defining the European Convention human rights subject (‘ECHR subject’), against which religious and cultural claimants are judged? In particular, which experiences, features or views are regarded as essential or ‘universal’ in the construction of this subject and which ones are marginalized as invisible, negligible or ‘particular’? Moreover, what kinds of consequences do these assumptions carry for religious and cultural applicants and their groups? Do they create exclusions and hierarchies between them? If so, what forms or shapes do such exclusions and hierarchies take and at what levels do they occur (e.g., within groups, across groups)? At a normative level, the research questions are: Should the Court avoid these exclusions and hierarchies – or open up these ‘universals’? If so, on what basis and how exactly might the Court do this? The dissertation proceeds in three major parts, each of which identifies ‘universals’ in the ECHR subject at a different level. First, it identifies exclusions and hierarchies within the abstract category of ‘human’. It argues that the Court has, to some extent, opened up the abstract universal human rights subject by acknowledging the constructed vulnerability of some groups. Yet traces of invulnerability foreclose fuller inclusion of cultural and religious group members. Second, the dissertation identifies exclusions and hierarchies within the religious and cultural ECHR subject, that is to say, across different religious and cultural groups. The dissertation argues that operating as one of the ‘universals’ of freedom of religion is a Protestant, belief- centered notion of religion, which favors internal and disembodied forms of religious subjectivity over external and embodied ones. The dissertation further unveils one of the ‘universals’ embedded in the right to respect for family life: the nuclear family idealized in some parts of Western Europe that disadvantages other forms of family life. Last, the dissertation identifies exclusions and hierarchies within sub-religious and sub-cultural ECHR subjects, namely within groups. It shows how such exclusions and hierarchies arise from elevating a 4 particular cultural or religious practice to the norm, as if it were the group paradigmatic practice. This practice is subsequently either fixed as the ‘essence’ of group identity or associated with negative stereotypes. The dissertation puts forward two central arguments. The first argument is that, in articulating the ECHR subject, the Court endorses various ‘universals’ that hamper the full and equal inclusion of a range of religious and cultural ‘others’. Though these ‘universals’ may manifest themselves in various forms and take place at different levels, they all respond to the same exclusionary logic: the experiences of some are confused with the experiences of all and posited as the yardstick against which everyone is judged. Indeed, the hidden (and not so hidden) workings of such ‘universals’ have not just led to the trivialization and marginalization of applicants’ experiences. Most worryingly, these workings have sometimes led to the devaluation or delegitimation of these experiences. The second central argument of this dissertation is that the Court should redress the exclusionary and inegalitarian character of such ‘universals’. To this end, the dissertation offers a multilayered framework aimed at opening up the ECHR subject at the three levels identified above: (i) within the abstract human rights subject; (ii) across religious and cultural groups; and (iii) within religious and cultural groups. In so doing, the framework intends to more fully realize religious and cultural equality in European Human Rights Convention Law. *** Zoals vele rechtscolleges in Europa en daarbuiten worstelt het Europees Hof voor de Rechten van de Mens (het 'Hof') met de uitdagingen die de hedendaagse culturele en religieuze diversiteit met zich meebrengt. Steeds vaker stellen verzoekers de hardnekkige opvattingen die aan de basis liggen van de juridische redenering van het Hof onder toenemende druk: van Sikh mannen die de tulband willen dragen tot Roma die hun reizende levensstijl willen behouden en moslimvrouwen die hoofddoekenverboden bevechten. Drie artikels van het Europees Verdrag voor de Rechten van de Mens ('EVRM') vormen het strijdtoneel waarop de druk het meest nadrukkelijk gevoeld wordt: non-discriminatie (Artikel 14 EVRM), vrijheid van godsdienst (Artikel 9 EVRM), en het recht op eerbied voor culturele levensstijl (Artikel 8 EVRM).
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