All About That Face (No Trouble?) An Analysis of the Dutch Ban on Face-Covering Garments in Light of the ECHR, ICCPR and CEDAW, together with
Feminist Theory RESEARCH ARTICLE
JOHANNA BUERKERT MICHAËL SCHUT LILI SZUHAI
*Author affiliations can be found in the back matter of this article
ABSTRACT CORRESPONDING AUTHOR: Michaël Schut The Dutch ban on face-covering garments (BFG) has caused a considerable amount Utrecht University, NL of debate in the Netherlands since its entry into force on August 1, 2019. Questions [email protected] have been raised as to whether this law is discriminatory towards those who wear full- face veils for religious reasons, as these individuals, almost exclusively women, will be excluded from public life based on their religion. KEYWORDS: Inspired by this debate, this paper analyzes the Dutch BFG from a regional and ICCPR; ECHR; Burqa ban; international law perspective. More specifically, this paper seeks to analyze Dutch Boerkaverbod; Multiculturalism; BFG in light of the European Convention on Human Rights, the International Covenant Ban on Face-Covering Garments; Feminist on Civil and Political Rights and the Convention on the Elimination of All Forms of Scholarship; CEDAW Discrimination against Women (CEDAW). Additionally, feminist theories play an auxiliary role in specifying CEDAW obligations from a feminist perspective. TO CITE THIS ARTICLE: While the ban may be justified from the point of view of the European Convention on Johanna Buerkert, Michaël Human Rights, it is problematic from the perspectives of the International Covenant Schut and Lili Szuhai, ‘All About That Face (No Trouble?)’ on Civil and Political Rights and the Convention on the Elimination of All Forms of (2021) 36(1) Utrecht Journal Discrimination against Women. Further research should therefore investigate this of International and European tension to determine how these frameworks can be reconciled while considering that Law pp. 33–51. DOI: https:// the standard set by the European Court of Human Rights only provides a minimum doi.org/10.5334/ujiel.533 level of protection. Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 34
1. INTRODUCTION regional and international law perspective. Therefore, the Dutch BFG will be analysed in light of the European Today’s societies are becoming increasingly multicultural Convention on Human Rights (ECHR or the Convention), the and intertwined.1 In the course of this development, International Covenant on Civil and Political Rights (ICCPR clashes arise between the ‘liberal, publicly secular and or the Covenant) and the Convention on the Elimination democratic’ systems of modern Western countries of All Forms of Discrimination against Women (CEDAW). and various religious orientations or beliefs and their These treaties have been chosen as they are all practice.2 A very prominent example of such conflict is sources of women’s rights and equal treatment. The the European debate surrounding the prohibition of face- ECHR secures the enjoyment of the rights and freedoms covering clothing, such as full-face veils, in public spaces it guarantees without discrimination on any ground, and when performing public functions.3 With its entry including sex and religion. Likewise, the ICCPR calls on into force on August 1, 2019, the Dutch ban on face- all State Parties to ‘ensure the equal right of men and covering garments (BFG) has given rise to a considerable women to the enjoyment of all civil and political rights’.17 amount of debate on this issue in the Netherlands.4 In sum, the Covenant focuses on equality without The BFG is classified as a partial ban on face-covering distinction.18 Building on this, the CEDAW took equality garments, meaning that it prohibits people from wearing without distinction a step further by formulating rights full-face veils and other garments in public transport and specifically for women.19 schools, hospitals or government buildings as well as Moreover, all aforementioned international legal their adjacent squares.5 Violating the law is considered a documents are applicable to the Netherlands. The ECHR misdemeanor and sanctioned with a fine of up to €415.6 binds the Netherlands directly and is enforced through Classifying the offence as criminal entails additional, the European Court of Human Rights (ECtHR) and national graver societal consequences. According to Article 53 of courts. Obligations set forth by international treaties the Dutch Code of Criminal Procedure, every individual (such as the ECHR, ICCPR and CEDAW) are incorporated may hold or arrest another temporarily (the so-called into the Dutch system by virtue of Articles 93 and 94 Burgerarrest) if they catch the other in the process of of the Constitution, provided that the provisions are committing a criminal offence in order to transfer them generally binding. This enables individuals to directly to a public prosecutor.7 This can have social implications refer to these provisions in a national court, given that on women wearing full-face veils, such as not being the provisions are sufficiently precise and unconditional.20 able to take public transport or attend their children’s In order to assess the ban in light of the applicable graduation, as veils are banned in public buildings like international treaties, it is necessary to first briefly universities.8 Consequently, this has raised questions examine provisions applicable to BFGs. A brief introduction as to whether this law is discriminatory towards those of the Dutch BFG and its aims is therefore followed by who choose to wear full-face veils for religious reasons, an extensive analysis of the international perspective as these individuals, almost exclusively women, will be on BFGs. As there is not much literature available on the excluded from public life on the basis of their religion.9 Dutch BFG, this analysis is done based on the example Roughly one year after introducing the ban, its of the French BFG. Enacted in 2011, the ban was the implications for society and Dutch women in particular first to be enacted in Europe and essentially contains a are slowly being evaluated by the public.10 Especially in full ban on face-covering garments in public spaces (a light of the current COVID-19 pandemic, which requires blanket ban). The reasons for choosing the French ban for every citizen to wear face masks in public transport and comparison are twofold. Firstly, the French ban has been public institutions, the necessity of and reasons behind a discussed excessively in literature, as well as by the ECtHR ban on face-covering garments are again under scrutiny.11 and the Human Rights Committee (HRCee) which assess Previous studies on the Dutch BFG have predominantly the fulfillment of States’ obligations under the ICCPR. It evaluated the ban in the context of the right to freedom is often considered to be the blueprint which the other of religion.12 This research also considers the context of bans were based off of.21 Additionally, due to its nature the influence of political changes in the Netherlands (e.g. as a blanket ban, the French BFG differs in scope from the the influence of liberalism)13 as well as the (validity of Dutch ban, as the French ban is applicable to all public the) public safety argument.14 Additionally, the ban has spaces, for example, streets and beaches, while the been scrutinized from a Dutch legal theory perspective.15 Dutch ban only applies to a few selected spaces (public Since the Dutch BFG is very recent in comparison transport, healthcare and public institutions including to its European counterparts such as the French ban, government buildings). Therefore, it is interesting to little scholarly research has been done regarding the contrast both bans to see the extent that a less restrictive relationship between the Dutch BFG and the international ban would be acceptable under the current standards of legal framework on non-discrimination, specifically religious and women’s rights. regarding women’s rights.16 This paper aims to contribute Although the ECtHR and the HRCee differ in terms of to filling this gap by analysing the Dutch BFG from a authority, as the ECtHR is a judicial body and the HRCee is a Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 35 quasi-judicial one, both of these frameworks are important arguments behind the BFG can be distilled from its as they contain information on women’s rights as well as legislative history. The 15-year history of the BFG can more general provisions on equal treatment. Moreover, roughly be separated into three phases, characterized by the ECHR provisions may not be interpreted in a way that the specific interpretation given to the BFG in each phase. conflicts with the higher standards set by the ICCPR and While they are in chronological order, the development CEDAW, which makes it necessary to look at these higher of the BFG is not necessarily linear and shows diverging, standards more closely when evaluating BFGs in terms often contradictory arguments. Tracing the genesis of of the ECHR. What makes the analysis more interesting the BFG, therefore, allows for a more comprehensive is that the ECtHR, HRCee and CEDAW Committee have overview of its goals and aims, also taking unwritten different, sometimes conflicting views on BFGs.22 arguments into account. Concerning women’s rights, obligations under Between 2003 and 2008, or phase 1, the discussion CEDAW are vital to this assessment. Firstly, and most centered mainly on the banning of Islamic face-covering importantly, BFGs do not only affect religious individuals garments. The public debate on face-veils was ignited but specifically religiouswomen. Consequently, including by a case in Amsterdam.25 Three Dutch-Moroccan girls a feminist perspective is vital in such a debate. This entered their school wearing face-veils to the dismay allows for an analysis from an exclusively women’s of their teachers. The school requested the girls to stop rights perspective and includes intersectional aspects wearing the face-veils, which the girls refused to do. of the problem. As Charlesworth and Chinkin point out, Consequently, they were no longer allowed to enter international law has many blind spots for women’s their school. Two of the girls decided to take legal action concerns. Their message to feminists is to ‘use existing and raised a complaint with the Dutch Equal Treatment mechanisms and principles wherever possible to improve Commission (Commissie gelijke behandeling, or CGB). The women’s lives’.23 In response to this, the BFG for sake of CGB stated that schools had an objective reason to ban consistency and its relation to CEDAW and international face veils, as they hindered open communication and law will be viewed through the lens of feminist theories.24 presented a security concern.26 However, a 2006 report By addressing BFGs from these three different for the Dutch government found that neither a general, perspectives in the order stated, the analysis moves from nor a specific ban on Islamic face-covering garments were a more limited scope to a broader framework, which justified from a legal perspective (Rapport overwegingen bij is complemented by a feminist outlook. Adding this een boerkaverbod). Additionally, they found that banning feminist dimension provides more depth to the analysis, all face-covering garments in all spaces was highly as it offers an additional lens through which the rights problematic, and that banning all face-covering garments provided by the treaty bodies must be understood. from specific places could already be achieved with Due to the limited scope of this research, as well existing legal means.27 This demonstrates that the need as the linguistic abilities of the researchers, this paper for a BFG was already criticized in the first phase. Following focuses mainly on English-speaking and European this report, two proposals for an Islamic BFG and a general, feminist scholars. While this choice significantly increases neutral BFG were made but did not enter into force.28 feasibility, it comes with the disadvantage that reliability While Dutch Parliament was rather reluctant to adopt and general applicability or broader relevance of this a BFG, it was nevertheless very present on the political study may be reduced by excluding an entire body of agenda in phase 2 (2008–2012).29 As a new Cabinet feminist literature. These concerns have been mitigated entered the political stage, a new phase in the debate in part by using translations and English works of non- about the prohibition of full face-veils began. In a letter Western authors. to the parliament, the Cabinet declared that a general Taken together, these three individual parts of the ban was not necessary since there were sufficient legal ECHR, ICCPR and CEDAW in light of feminist theory form means to deal with security risks in public spaces and the basis for an evaluative framework that allows for the on public transport. Nevertheless, it was determined subsequent analysis of the Dutch BFG. This analysis will that a restriction on wearing full face-veils must be scrutinize the Dutch ban in consideration of the ‘criteria’ imposed as it hinders open communication. Therefore, derived from these frameworks. The conclusions provide the Cabinet proposed a prohibition of the full face-veil in for a normative assessment of the ban under the three all educational institutions and for civil servants.30 Herein, different frameworks of rights, as well as suggestions for parliament recognized that full-face veils contravened further research. principles of good administration. However, they intended to solve this issue through preexisting legal means.31 Including a BFG in public spaces in the coalition 2. THE DUTCH BFG agreement demonstrated its priority on the public agenda but also limited the scope of the BFG considerably.32 As To assess the Dutch BFG, a brief outlook on its rationale such, phase 2 showed a development towards phase and goals must be given. The official and unofficial 3. However, a definitive change only occurred in 2012, Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 36 which marks the beginning of phase 3. BFG. This is then followed by a discussion of the rights The most important change in this third phase was listed in CEDAW that are applicable to the Dutch BFG. the introduction of criminal sanctions in a new legislative In SAS v France (2014), the ECtHR first reviewed the proposal. This was motivated by the idea that criminal French BFG.39 In this case, the applicant claimed that the sanctions give the perpetrator more protection and French BFG violated Articles 8 (right to respect for private are applied more uniformly.33 While the memorandum and family life), 9 (freedom of thought, conscience accompanying the BFG acknowledged the risk of and religion), 10 (freedom of expression) and 14 ECHR discrimination on the basis of gender or religion, it found (prohibition of discrimination).40 Four years later, the an objective justification in the fact that a prospective HRCee received two complaints from applicants who BFG would enable everyone to participate equally in found themselves in a similar situation (Yaker v France social interactions, increasing openness and equality.34 [2018] & Hebbadi v France [2018]).41 Not only did they, Although this proposal never entered into force, the similar to the applicants in SAS v France, claim that follow-up proposal for a BFG in 2015 led to the present the French BFG violated their religious freedom as law.35 guaranteed by Article 18 ICCPR, they also believed it to In essence, the government aims at striking a balance be discriminatory in nature, thereby violating their rights between freedom to dress as one wants on the one hand under Article 26 ICCPR.42 and the principle of recognizable communication on the other.36 The restrictions set forth by the ban are justified 3.1 INTERFERENCE by two reasons, namely facilitating communication and The first step in determining whether a BFG constitutes a the provision of services in public spaces in line with the violation of the rights guaranteed by Article 9 ECHR and Dutch pluriform culture and increasing security in these Article 18 ICCPR was to consider whether there had been spaces.37 Additionally, another incentive for enacting the an interference with said rights.43 Both the ECtHR and law instead of utilizing local or decentralized measures the HRCee acknowledged in SAS v France and Hebbadi is improved uniformity of the rules to increase legal v France and Yaker v France respectively that the French certainty and coherent enforcement. Although public BFG, entailing a blanket ban of face-covering garments, security is not the main argument, as the language of constituted a limitation of Article 9 ECHR and Article the ban strongly focuses on increasing openness and 18 ICCPR.44 They argued that the impugned measure equality, this argument played a role in the drafting meant that the applicant was faced with the dilemma process and needs to be considered when assessing the of either dressing according to her religion and violating ban. the French BFG in the process or complying with the BFG but having to renounce her religious convictions.45 This complex dilemma meant that there was interference 3. AN OUTLOOK ON BFGS FROM AN with the freedom of the applicants to freely practice their INTERNATIONAL LAW PERSPECTIVE religion.46 Having determined that the impugned measure This chapter seeks to provide a base for the evaluative constituted a limitation of the freedom of religion, the framework by analyzing the stance of the ECtHR, ECtHR and HRCee were left to consider whether such HRCee and CEDAW Committee on BFGs. Rather than infringements could be justified under the limitation providing a successive analysis of their case law, clauses of Article 9(2) ECHR and Article 18(3) ICCPR.47 This communications and provisions, respectively, this essentially meant that the ECtHR and the Committee had chapter takes the French BFG’s aims as a point of to determine whether the aims pursued by the BFG(s)— departure, namely public safety and ‘respect for the public safety and ‘respect for the minimum set of values minimum set of values of an open and democratic of an open and democratic society’—could be considered society’.38 As mentioned, this is mainly due to its legitimate and proportionate in a democratic and plural extensive discussion in literature and case law, as well society such as France.48 Although the Court and the as its broader scope, which makes a comparison with Committee reached a comparable outcome with respect the narrower Dutch ban interesting. Additionally, the to the legitimacy and proportionality of the aim of public goals of both bans are similar in the sense that they safety, they diverged significantly with respect to the aim both seek to improve situations in which people need of ‘living together’—both in terms of its legitimacy and to interact or live together. The objectives of the French proportionality.49 BFG are then analysed by considering the stance of the ECtHR and HRCee on the legitimacy and, most 3.2 PUBLIC SAFETY importantly, the proportionality of these aims. Thus, 3.2.1 Legitimacy a legal framework is provided which can be used to The first objective the French BFG purported to pursue scrutinize the official and unofficial aims of the Dutch is that of public safety, which is a legitimate aim under Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 37
Article 9(2) ECHR and Article 18(3) ICCPR. Both the 3. Justify a blanket BFG based on specific contexts in ECtHR and HRCee recognize ensuring public safety as a which there are a ‘specific and significant threat to legitimate aim for, amongst other reasons, identification public order and safety.’61 purposes and as a means of combating identity fraud.50 4. Demonstrate that a BFG is the least restrictive measure.62 3.2.2 Proportionality Having determined that the goals of the French BFG are, It seems that the Court and the Committee reached the in principle, legitimate, it remained to be determined same outcome with respect to both the legitimacy and whether their pursuit was proportionate in the given the (dis)proportionality of the aim of public safety of the context. In determining whether that was the case, French BFG. However, by explicitly placing the burden of States party to the ECHR were ‘in principle, (...) afforded proof on the State to justify the proportionality of a BFG a wide margin of appreciation in deciding whether and in multiple respects, the HRCee seems to condition the to what extent a limitation of the right to manifest one’s permissibility of BFGs to a greater degree than the ECtHR, religion or beliefs is “necessary”’.51 at least where it concerns the invocation of public safety This large degree of leeway relies on two premises. as a legitimate aim. The first is the lack of consensus on the permissibility of BFGs among the State Parties.52 The second is that, 3.3 VALUES OF AN OPEN DEMOCRATIC since the ban is a product of democratic deliberation, SOCIETY the French law can be thought to have already struck 3.3.1 ECtHR a balance between competing human rights and The French government also justified the BFG with interests of minorities and the majority.53 That being reference to the aim of ‘respect for the minimum set said, the ECtHR considers that, despite the wide of values of an open and democratic society.’ This margin of appreciation afforded to France, an intrusive consisted of the values of respect for equality between measure such as a blanket BFG can only be considered men and women (I), respect for human dignity (II) and proportionate for the sake of public safety if a State respect for the minimum requirements of life in society Party demonstrates that there is a general threat to (III) (also referred to as ‘living together’ or in French: public safety.54 The French government failed to fulfill vivre ensemble).63 In contrast to the objective of public this requirement. Additionally, the Court observes that safety, the ECtHR did not readily accept the legitimacy the objective that the French government wished to of the values which the French Government linked to attain in terms of public safety—namely, the need the ‘protection of the rights and freedoms of others’ as to identify individuals in order to ensure the safety of a common concept. Instead, the ECtHR reviewed the persons and property and to combat identity fraud55— legitimacy of each of the three values individually. could have just as well been attained less intrusively. By The first two values were discussed superficially, as obligating wearers of the burqa ‘to identify themselves neither warranted a great deal of reasoning. Concerning where a risk for the safety of persons and property has the aim of promoting gender equality, the Court briefly been established’, the same result could be achieved,56 considered that a BFG cannot be invoked as a legitimate and this was an obligation with which the applicant in aim since doing so would come down to banning a SAS v France was willing to comply with.57 practice that is ‘defended by women—such as the The HRCee was equally dismissive of the proportionality applicant.’64 Had the Court decided otherwise, it would to public safety. Although the Committee ‘recognizes the have had to accept ‘that individuals could be protected need for States, in certain contexts, to be able to require on that basis from the exercise of their own fundamental individuals show their faces’ on a more or less one-off rights and freedoms.’65 As for human dignity, the Court basis, it considers that a BFG such as the French one, considers that the wearing of face-covering garments which ‘comprehensively prohibits the wearing of certain must be considered ‘(...) an expression of a cultural face coverings in public at all times’ due to its blanket identity which contributes to the pluralism that is inherent nature, cannot be considered proportionate.58 For the in democracy’ that is not in violation of the wearers’ nor pursuit of public safety to be considered proportionate, the bystanders’ dignity.66 they must: In contrast to the first two aims, the Court devoted quite some considerations to the third aim—that 1. Demonstrate that banning a full-face veil is justified, of ‘living together’. It considers ‘that under certain as it represents a high threat to public safety or conditions the “respect for the minimum requirements of order.59 life in society” (...) can be linked to the legitimate aim of 2. Justify why the BFG distinguishes between covering the “protection of the rights and freedoms of others”’.67 of the face for certain purposes (e.g. a niqab) and In the given context, the respect for the minimum allows for others (e.g. sporting, artistry, etc.).60 requirements of life in society must be understood as Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 38 the possibility of open interpersonal relationships which assumed to be disproportionate. On the other hand, one is considered impeded by face-covering garments.68 The of the HRCee’s members, Yadh Ben Achour, disputes face, as the government argued and ECtHR decided, is an the idea that the notion of ‘living together’ is vague or indispensable element of interaction and interpersonal ambiguous and asserts that the concept is rather precise relationships. Protecting perhaps the most elementary and specific. In his words, the notion of ‘living together’ condition for creating and maintaining interpersonal ‘(...) is founded on the very simple idea that a democratic relationships—the showing of the face—could, therefore, society can only function in full view of all.’77 be considered a legitimate aim. Accordingly, even if the Committee were to consider At the same time, the Court notes that because it a legitimate objective, the applicant’s rights under the notion of ‘living together’ is ‘flexible’ (ambiguous), Article 18 ICCPR would still be violated, for the French a careful examination of its necessity is warranted.69 government had failed to demonstrate that the BFG, Such an examination takes the form of a balancing act as a blanket ban, is proportionate.78 Additionally, and in which the religious freedom (Article 9 ECHR) of those perhaps more importantly (at least for the purposes of who wish to conceal their face for religious reasons is this paper), the applicant claimed a violation of her rights weighed against the rights and freedoms of others (the under Article 26 ICCPR (right to non-discrimination). The minimum requirements of life in society). In striking a HRCee’s reasoning with regard to the discriminatory balance between ‘freedom of thought, conscience and nature of the BFG is similar to that of the ECtHR with regard religion’ on the one hand, and ‘dialogue and the spirit to public safety, namely that the French government of concession’ in a pluralistic society on the other hand, failed to justify why a BFG would be reasonable in cases States (as mentioned previously) enjoy a broad margin of such as the applicant’s but not in cases outlined by the appreciation.70 exceptions.79 However, the exceptions are, as Yadh Ben Given this balancing act, the Court provided Achour mentions, circumstantial and temporary, whereas several arguments as to why the French BFG would be the burqa is neither.80 disproportionate: the small number of women affected, Furthermore, the French BFG seemed to be based on the the threat it poses to the individual’s (religious) identity, assumption that the full-face veil is inherently oppressive the fact that various national and international actors towards women, in the sense that the obligation to wear have opposed blanket BFGs and, finally, the risk that the full-face veil is imposed by the patriarchy.81 While this BFGs play into Islamophobic tropes and stereotypes.71 argument is neglected in the ECtHR case law, this was Nevertheless, the Court gives more weight to the fact that considered in the HRCee proceedings. The applicants the principle of ‘living together’ is not only considered that submitted their complaints to the ECtHR and to be a condition of a democratic society, but more HRCee, however, proved otherwise: all of them chose to importantly, a choice made by that democratic society; wear a full-face veil voluntarily as an expression of their it is the French people that have chosen to accept it as a identity.82 prevailing principle.72 As such, the Court concludes that Finally, rather than promoting pluralism and gender there has been no violation of Article 9 of the Convention, equality, the HRCee noted that the BFG runs the risk of as it is obligated to assess the ban with a wide margin ‘(...) confining them [fully veiled women] to their homes, of appreciation.73 The Court’s recent decisions in Dakir impeding their access to public services and exposing v Belgium (2017) and Belcacemi and Oussar v Belgium them to abuse and marginalization’.83 In this sense, the (2017) show that its reasoning in SAS v France has BFG could be considered counterproductive, not only to remained valid, at least when it comes to the French and pluralism, which is actively suppressed by a BFG, but also Belgian BFGs.74 to gender equality, which a BFG is likely to undermine. The HRCee concluded that the impugned measure 3.3.2 HRCee not only constituted discrimination, but a form of Compared to the relatively lenient approach of the ECtHR intersectional discrimination based on gender and with regard to the principle of ‘living together’, the HRCee religion.84 As such, the principles of non-discrimination takes a much stricter approach. It considers that in order under the ICCPR and gender equality in the context of to invoke the protection of the fundamental rights and CEDAW are equally relevant. The explicit acknowledgment freedoms of others in the first place, the State is required of intersectional discrimination in Yaker v France and to identify the specific fundamental rights and persons Hebbadi v France is what truly sets apart the HRCee affected.75 Living together, an abstract and vague decisions from that of the ECtHR. While the ECtHR only notion, cannot serve as a legitimate justification in itself briefly assessed (and rejected) the argument that the according to the HRCee.76 Similar to the aim of public ban is conducive to gender equality, it failed to assess safety, the Committee gives due weight to the State’s whether such a ban actively undermines it. The HRCee, obligation to sufficiently demonstrate the necessity of on the other hand, considered that a BFG, far from a limitation. If the State fails to do so, the limitation is promoting gender equality, discriminates on the basis Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 39 thereof. But in doing so, the HRCee’s reasoning was quite the context of CEDAW rights of non-discrimination and limited. A more thorough assessment based on CEDAW access to education, job opportunities and healthcare. and feminist theories is given in the following section in Next to these three sections, feminist theory also order to elucidate what the ECtHR left unanswered and provides another angle to assess the BFG. the HRCee left unexplained. Moreover, the argument of equal participation in society played a role in introducing the Dutch BFG. 3.4 CEDAW IN LIGHT OF FEMINIST THEORY Especially in earlier stages of the legislative process, it CEDAW has been established to advance the protection was argued that women needed to be ‘protected’ from of women’s rights. In order to achieve this aim, women’s being forced to wear face-covering garments.94 While rights are declared through an international bill of rights this argument did not officially play a role in drafting the for women and their implementation is supported by current ban (interestingly, the explanatory memorandum an agenda for national action to end discrimination of the ban does not even mention the word ‘women’ and against them.85 Therefore, CEDAW adds a gender only refers to ’wearers of religious dress’), it is unlikely equality dimension to the principle of non-discrimination, that this argument has simply been forgotten in the drawing specific focus against discrimination of women. newer version. An assessment of this argument from a CEDAW obliges State Parties to eliminate both direct and feminist perspective is therefore also interesting. indirect discrimination against women.86 Consequently, The topic of allowing or prohibiting Muslim women CEDAW prohibits provisions prescribing different to cover themselves ‘is difficult theoretical terrain for treatment explicitly based on grounds of sex and gender all feminists’.95 This is illustrated by the debate among differences as well as provisions with a neutral wording French and Muslim feminists. The introduction of the in terms of gender differences but with a discriminatory BFG in France sparked debate among French feminists. effect in practice.87 The Convention specifically addresses Those in favor of the ban argued that the full-face veil the equal treatment of men and women in the areas is oppressive and deprives women of their dignity, while of education, employment and healthcare, where those against it argued that the full-face veil is part of States must take measures to prevent and eliminate women’s self-determination and the ban violates their discrimination of all forms.88 Discussing the Convention rights.96 In addition, faith-based and secular Muslim is especially relevant as the Dutch ban has implications feminists diverged in their views on the meaning of Muslim in all three areas. women veiling themselves, the former not necessarily Another analytical framework to evaluate seeing it as a religious requirement and the latter seeing discrimination is intersectionality: the concept that it as an expression of religious fundamentalism.97 In the different factors of someone’s identity create a unique following sections, the focus is on three of the points: experience of oppression or disadvantage.89 An whether the ban is a symbol of oppression or choice, intersectional analysis views the facets of social identity, its relationship to career opportunities and its practical such as gender, race and religion, as interrelated and implementations. These arguments will be presented in mutually shaping each other.90 In the context of the BFG, relation to CEDAW. the relevant intersection of identities is that of gender and religion, as the BFG targets not only women but 3.4.1 Face-covering garments: oppression or specificallyreligious women. This also speaks to the need choice? for the discussion of the BFG from a women’s rights or Article 2 CEDAW imposes the obligation onto State feminist perspective. Parties to end discrimination against women, including Within the general term ‘gender equality’, the abolishment of ‘all customs and practices that CEDAW proposes several specific focal points. In constitute discrimination’.98 Moreover, Article 5 CEDAW the case of the BFG, equality in terms of education, imposes the obligation to abolish cultural practices employment and healthcare, as well as the obligation that are based on the inferiority or superiority of either to abolish discrimination, are relevant.91 In its 1992 of the sexes. In line with that argument, previous recommendation, the CEDAW Committee clarified its versions of the ban have argued that women need to views concerning violence against women. According be protected from oppression from wearing the face to the Committee, gender-based discrimination is veil. Although this argument was not put forward in the discrimination which ‘seriously inhibits women’s ability enactment of the ban, it is highly unlikely that it was to enjoy rights and freedoms on a basis of equality with left behind completely, especially considering that it men’.92 The Committee hereby stresses access to work played such an important role in previous discussions.99 as well as health care as explicit examples. Moreover, From a feminist perspective, there are two sides to the Committee clarifies that this discrimination can be this argument: whether the face-covering garment is perpetrated by public authorities directly by violating their a form of oppression or a choice made by the women positive obligation to prevent discrimination.93 Therefore, themselves. Badinter recognizes two types of women it must be assessed whether BFGs are discriminatory in who wear the burqa: the ‘revendicatrices’ (reclaimers), Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 40 or women who see the burqa as an expression of the familiar with when faced with the new and unknown democratic principle that people may dress as they wish, environment of their receiving country.113 Additionally, and the ‘soumises’ (submissives),100 who appear to lack others see it as a means of negotiating their own identity. the opportunity to voice their opinion on the practice These women have their own ideas on how they want to and, thus, possibly wear the burqa under coercion.101 represent themselves in public and use their freedom to With regard to the former category, Badinter argues that make the conscious decision of wearing a burqa. Howard they are in the wrong since this democratic principle, at argues that, taking this reason into consideration, a ban least in the Western tradition, includes only coverings on the veil contravenes women’s rights to autonomy and of the body which exclude the face. Consequently, the free choice as laid down in Article 8 ECHR.114 She goes ‘revendicatrices’ are invoking a principle that does not further and states that ‘banning headscarves and other apply to the practice of Western countries. Regarding the religious symbols is just as paternalistic and oppressive of ‘soumises’, Badinter does argue that it is necessary for women as forcing them to wear these’.115 democratic society to use the legal tools that can liberate This take on the BFG is shared by Zine. She states them from these coercive circumstances: a ‘burqa ban’.102 that just as under ‘authoritarian theocratic regimes’ in Berktay supports this idea, stating that the burqa is which women’s bodies are regulated and disciplined by inherently oppressive as it springs from a theology of laws that oblige the women to wear burqas, women the maintenance of ‘female purity’ and is something are oppressed in Western democratic societies where compulsory for the women who believe in this concept.103 they are legally obligated to unveil themselves.116 Both Hessini aligns with this train of thought. She believes that systems limit the women’s expression of their own veiling may indeed be liberating for Muslim women since narrative of Islamic womanhood.117 As an unintended, they obtain respect and freedom within their religious perhaps unexpected, side-effect of the (controversy community,104 however, she argues that the choice of surrounding the) burqa ban, some women have actually veiling is made within a traditionally patriarchal, and started to wear burqas to express their solidarity with therefore restrictive, framework.105 This view of the burqa those who are affected by the bans, thus demonstrating is shared and substantiated by Habchi and Amara. These against the government and local authorities responsible authors draw from their own experiences with the burqa for the ban.118 in Algeria, where the burqa was used as a tool to deprive Moreover, the argument that women are pressured to women of their most fundamental liberties.106 Habchi wear the burqa by their family, community or religious states that the burqa confines women to the sexual leaders is contradicted by empirical research conducted sphere, further excluding them from the economic and by Gereluk among Muslim schoolgirls. Many girls who social aspects of society.107 Consequently, the practice of wore a hijab for reasons such as their parents’ wishes veiling in Western countries is seen as a mere extension did not perceive this as ‘pressure’ but instead as parental of the oppressive practice of subservience in response to guidance and a sign of their love.119 It remains difficult to male pressure.108 ascertain what role the influence of family, community The arguments proposed by Badinter, Berktay, Hessini, and religious leaders plays in the choice of girls and Habchi and Amara linking the veil to the oppression of women to wear burqas since there is a lack of evidence women are mirrored in history. An example of this is that supports either the coercion or the choice theory. the Taliban’s regime in Afghanistan in the 1990s, during In practice, the underlying reasons are much more which women were forced to cover themselves in the complicated and interwoven.120 context of multiple restrictive measures.109 In the context of the Dutch BFG, Moors points out that While both feminist legal theories and history can face-veiling women have publicly stated that they were portray the veil as oppressive, and therefore a ban as not coerced to wear the face-veil, but to the contrary, liberating, the opposite is also visible. In the 1970s, for chose to wear it.121 This is further substantiated by example, women in Iran took up the veil as a form of empirical research Moors conducted in 2009. There are ‘political protest and revolutionary action’.110 As a result, multiple reasons for Dutch Muslims to wear the veil: various feminist legal scholars argue that religious some wear it because they find it ‘exciting’ or ‘fun’, others garments are not a symbol of oppression but one of see it as an expression of their Muslim identity and do it assertion and affirmation of women’s agency over the to show that veiled women can contribute to society as representation of their bodies.111 well.122 However, they all agree that they were not forced An illustration of arguments against the ban is given to wear it and chose to do it themselves. In fact, many by Howard, who provides three reasons to assume that of the interviewees state that their parents and partners wearing a burqa is a choice rather than coercion.112 even opposed.123 Firstly, certain women wear the burqa as a means to As such, the problem is that a regulation that aims to reclaim and affirm their ethnicity and religion. According promote gender equality has the exact opposite effect in to Howard, this reason is most frequently given by older practice in certain cases. However, this does not always migrant women who hold on to the practices they are have to be the case. The transnational feminist approach, Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 41 as developed by Kalantry, emphasizes that considering possible that societal perception of Muslim women and the context of both the migrant-sending and migrant- the visible intolerance towards them arguably contribute receiving countries in decision-making can mitigate to this divide and forces women to choose. these concerns. She encourages policymakers to gain The question arises whether a state can and should knowledge on whether the factors that contribute to limit women in their choice between religion and family making a practice oppressive in one context are also life or a professional career and societal success in the present in another country’s context.124 In addition, she Western sense. This is in line with Taylor’s argument that emphasizes that culture is not fixed in time and space. the underlying norms of human rights, including that of Consequently, the reasons for women to engage in non-discrimination, are built on ‘a specific moral outlook a cultural practice in one country can differ from the in Western history’.129 She points out that in assessing reasons for women to engage in the same practice in a cultural and religious practices, the specific, original different country.125 context of the practice should be taken into account Following the arguments from the feminist scholars since ‘against a culturally different moral background cited above, Articles 2 and 5 CEDAW must be read with social differences—including gender differences—might an understanding of the need for women to be free to be viewed as being invested with meaning and thus wear the attire they like without additional social (or calling for differentiating practices’.130 vocational) consequences attached to this choice. The If women wearing a full-face veil are not allowed in discriminatory/stereotyping practice that must therefore public buildings and on public transport, this will confront be abolished is the BFG itself, as imposing a BFG creates them with the choice to either surrender to the ban and the image that women need to be liberated, which forego the veil to have a successful career (‘Western’ removes their agency. This is especially true considering version of success) or to keep on wearing their veil in the view of the Committee that discrimination can be accordance with their religious beliefs and the beliefs perpetrated by institutions, in this case towards women of their community (‘non-Western’ accepted version who choose to wear face veils. of success). In that sense, women who choose to wear the veil for religious reasons are treated unequally 3.4.2 Education and career opportunities compared to both men as well as other women of non- The second argument discussed in relation to a BFG is Muslim background. Projecting these two versions of related to possible career opportunities. Article 10 and success runs counter to the principle of equality that is 11 CEDAW establish the obligation for State Parties championed by CEDAW. to promote women’s education and equal career The Committee stresses the importance of education opportunities in comparison to men. This does not as a basis for overall societal success and adaptability only entail access to the same curricula, but also the and emphasizes the right for women to make a choice obligation to reduce female dropout rates.126 Herein, regarding their career opportunities.131 While women are the argument put forward is that a (Muslim) woman more highly certified overall, the Committee observes has more career and educational opportunities when that men are, nevertheless, preferred over women when unveiled. Especially in the Dutch debate, the argument it comes to employment.132 Therefore, the Committee arose that it is necessary for everyone to communicate argues that certification ‘does not carry the same social openly in educational spaces, as this guarantees a good currency for men and women’.133 Institutionalized quality of education.127 While it is in line with CEDAW gender roles can therefore contribute to the persistent obligations to encourage women’s education and ensure inequalities in access to education: ‘The result is that rather an equal quality compared to their non-Muslim/male than being transformative, institutionalized schooling counterparts, the way in which the BFG works might not becomes an instrument of the state for reproducing fulfill this aim. The aim is currently formulated in a way the gender order and maintaining the male/female, that appears to be based on the Western conception of dominant/subordinate and public/private hierarchies’.134 priorities and ambitions which attach societal relevance On one hand, the Committee stresses the obligation to professional success. This prioritization, however, is to remove barriers to women’s access to education. not necessarily the same for every citizen. In empirical On the other hand, the Committee also points out that research amongst women wearing full-face veils, Moors parties should be responsible for eliminating prejudices found that religion and family life prevail over career and gender stereotypes that preclude women’s access and education as a priority and means for societal to education135 instead of creating new ones that might success.128 Imposing a certain stereotype on women of hinder them from participation altogether. non-Western backgrounds runs counter to the aims that CEDAW strives to fulfill. Additionally, this presupposes 3.4.3 Participation in public life that career and education, as well as social success, are A third argument that can be derived from the feminist mutually exclusive. This need not be the case, yet it is perspective is that the ban has controversial practical Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 42 implications, especially concerning the right to participate 4. EVALUATIVE FRAMEWORK equally in public life. Even if the assumption were correct that all women prioritize professional life over family In order to assess whether the Dutch BFG is compliant and religious life, BFGs are seen as problematic in that with these factors as well as the other factors mentioned sense. Bribosia and Rorive have pointed out that the ban above, an evaluative framework has been constructed could have the exact opposite effect of what it aims to which is presented in the following chapter. As mentioned, achieve.136 If it is assumed that women wearing burqas the Dutch BFG faces three standards of review, for it must are doing so under coercion, then prohibiting them be evaluated against the judgments of the ECtHR, the to wear it in public could lead to their isolation and decisions of the ICCPR, and the positive obligations of exclusion. In that regard, empirical research shows that States under CEDAW. While the ECtHR allows for a rather women who have removed their face-veil due to bans large margin of appreciation, assessing whether the BFG felt that they did not do so due to being liberated, but complies with ECHR norms is not the Netherlands’ only more out of fear of social ramifications, and reported to concern. As mentioned, Dutch law integrates directly socialize less as they felt uncomfortable being in public applicable provisions from international treaties by virtue with their face uncovered.137 Consequently, women of Articles 93 and 94 of the Constitution. Article 53 of reportedly feel that they are confined to their homes, the ECHR specifically states that obligations under the either because they are not allowed to enter public Convention cannot be used as an argument to disapply spaces by the same males who coerce them into wearing higher protection standards. For this reason, the Dutch burqas, and/or because they are afraid of verbal and BFG is evaluated in light of the two other international physical aggression, confrontation and potential arrest human rights frameworks that the Netherlands is part of (by the police).138 The occurrence of such aggression before drawing joint conclusions. could increase after the introduction of the BFG, as it First, from an ECHR perspective, it must be assessed reinforces the stereotyping of Muslim women.139 Again, whether a State can demonstrate that there is a general this runs counter to the obligation to abolish sex-based threat to public safety that cannot be countered by stereotypes. It is additionally questionable whether less intrusive means. This is also relevant in the case criminally prosecuting these women is at all desirable if of the Dutch BFG, as one of the main arguments, next they would be victims of a high degree of oppression and to open communication, is public safety. However, it coercion.140 Setting a criminal penalty on an action that needs to be kept in mind that, as the Netherlands has is directly related to women’s beliefs (and for which men not enacted a blanket BFG covering all public spaces, cannot be criminalized, as they don’t wear face-covering the argument merits a brief discussion. Regarding the garments for religious reasons), appears to run directly notion of living together, the French concept is legitimate counter to the aims of Article 2 (g) CEDAW which calls as a BFG protects the rights and freedoms of others in for State Parties to abolish criminal sanctions that are interpersonal interactions. Additionally, it is proportionate inherently discriminatory against women. as it is considered essential to the character of French civil society and is considered a conscious public choice. 3.4.4 Access to healthcare Therefore, the evaluation has to assess whether this Lastly, from a CEDAW point of view, equal access to equally applies to the Dutch case. healthcare is important in the discussion of the ban’s The second evaluative framework is based on the implications on women’s rights. Article 12 CEDAW criteria set by the ICCPR. The HRCee agrees that, unless herein explicitly stipulates the right to equal access a state is able to demonstrate that there is a general to healthcare, with a specific focus on the access to threat to public safety that cannot be defended against reproductive healthcare, as ‘neglect of these services by less intrusive means, the aim of public safety cannot disproportionately burdens women’.141 Access to be considered proportionate.144 It must therefore again healthcare must therefore not only be equal compared be assessed whether there is a general threat to public to men but also specifically adjusted to women’s needs safety and whether there are less intrusive means to guarantee an equal standard of healthcare. The available to achieve this goal. Secondly, according to the CEDAW Committee stresses that particular focus should HRCee, the vague notion of living together is not a specific be paid to the rights to access to healthcare for migrant enough right to justify a BFG. The evaluation must assess women. This provision specifically aims at tackling any whether specific rights are secured by the Dutch BFG. intersectional discrimination that these women may In light of feminist theories, CEDAW implies that the face.142 Additionally, the Committee explicitly mentions Netherlands ought to refrain from acting in a way that that one of the obstructing factors can be insufficient results in (in)direct discrimination of women and strive public transport to healthcare facilities.143 Hence, the for laws, policies and practices that ensure substantive Committee stresses that State Parties should remove equality between men and women. Consequently, for the such barriers, not create more of them. more substantive view on intersectional discrimination Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 43 and its implications in relation to the burqa ban, the Regarding ‘living together’, the ECtHR substantiated Dutch BFG is examined against the criteria established its judgment with the argument that being able to see by CEDAW in consideration of feminist theories. As the faces is both a condition for the functioning of French ECtHR already confirmed that such a ban cannot promote society as well as a conscious choice made by said gender equality, it remains to be determined whether it is society. While the Dutch have not invoked the concept of adversely impacted. The obligations under CEDAW imply living together as such, the accompanying documents of that laws must leave women with a choice regarding the BFG state that the ban facilitates equal participation their personal attire, must further women’s access to and communication, which is said to be in line with the education and employment (without forcing them to Dutch pluriform society. Additionally, the debate that trade in their social status) and must not compromise lasted for over a decade shows that Dutch society has women’s life on a daily basis. Hence, it must be evaluated engaged intensely in the topic, which arguably has led whether the BFG has an adverse effect on women’s lives to a conscious societal choice. While a large margin of in these areas. appreciation again makes it likely that the court will sustain this argument, its validity can nevertheless be questioned. First, one could claim that the pluriform 5. EVALUATION OF THE BFG Dutch culture could also be an argument against a BFG, 5.1 THE ECTHR PERSPECTIVE as tolerance and openness towards others are inherent This first section evaluates the Dutch BFG in light of the values to the Dutch society that ought to provide for the ECtHR criteria. As it is rather similar to the French version possibility to dress however one desires.147 in terms of its content, the evaluation limits itself to the Lastly, it can be argued that the ongoing debate most important points. The genesis of the BFG shows over the BFG over the last decade shows that there is that the arguments of both public safety and open not necessarily a societal consensus concerning this communication played a vital role in the enactment of topic. However, both arguments fall within the scope the Dutch BFG. However, since the first stages, in which of the national margin of appreciation, which makes the public safety argument was more at the forefront it unlikely that the court will address them in potential of the debate, the importance of this argument has future proceedings. Based on the facts mentioned above, decreased. Accordingly, the evaluation of this argument it can be argued that the Dutch BFG fulfills the ECtHR’s is rather brief. requirements. However, as mentioned, the Netherlands The threat to public safety has not been substantiated is subject to a larger framework of human rights in parliamentary debates or the explanatory memoranda. obligations which necessitates an analysis which also While it is important to keep in mind that the ECtHR does considers these frameworks. not require countries to demonstrate public threat in detail due to the margin of appreciation afforded to them, 5.2 THE ICCPR AND CEDAW PERSPECTIVE it is interesting to note that the 2006 expert commission When addressing the Dutch BFG from an ICCPR and (CGB) report on the Dutch BFG found a blanket ban, CEDAW perspective, the arguments regarding public such as the French ban, to be disproportionate.145 Since policy are remarkably similar to the arguments the Dutch ban is not a blanket ban, it differs from the mentioned above. However, it must be stressed that the French one in scope.146 Although it is less restrictive, it is proportionality test is even stricter when looking at the questionable whether the Dutch ban can withstand the issue from this perspective. It is remarkable that the fine proportionality test, as it remains unclear whether less for wearing a full-face veil (or other garment) in public intrusive means could not achieve the same outcome. is low compared to the aims of the BFG. Fines in the Referring back to the 2006 CGB report, it is notable that Netherlands range from €3 to €870.000, with the range the expert commission appointed by the government being divided into 6 categories, where €400 is at the top found the then-existing administrative measures to be of the first category.148 If the goal was really to prevent sufficient to achieve the BFG’s goals. While the lawmakers violence or terrorist attacks, the fine should arguably be in phase 3 chose a criminal sanctioning system in order much higher. Additionally, as of October 2020, no fines to ensure legal certainty and uniform application, it is have been issued yet, which leads to the suggestion that questionable whether this aim outweighs the social the law is not really enforced.149 This reduces the strength stigma that might come from the possibility of facing of the public safety argument considerably, meaning a Burgerarrest, especially if the same result could be that the proportionality test is not satisfied. achieved with administrative measures. As a result, it is Much like in the French case, Dutch legislators have likely that the Dutch ban, although more limited in scope, not identified a specific right that a BFG would protect; will face the same result as the French ban, namely that it essentially relies on the notion of living together. In it might be legitimate but nevertheless disproportionate that respect, the Dutch ban is unsatisfactory as well, in securing public safety. as it is not made to protect a specific right. It needs to Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 44 be mentioned that the BFG has been connected to the Women’s lives will likely be compromised, not only in right of good administration as well as legal certainty. terms of their access to healthcare, but also regarding It can be argued that a uniform BFG fulfills this principle their daily routine, as a ban is likely to confine them to better than the previous fragmented system. However, their homes.153 It is irrelevant whether this is the result of this idea was refuted by the earlier CGB reports as well their male family members banning them from leaving as by the Dutch Council of State in 2015.150 While this the house or out of fear of a prospective Burgerarrest. might be correct regarding the form of the BFG, it does Deterring women from leaving their homes cannot be not say anything about the underlying rights that a BFG said to be in compliance with any of the State Parties’ (in whatever form) can safeguard. Hence, it is unclear obligations under CEDAW. whether the BFG fulfills the obligations set by the ICCPR. Lastly, the lack of mobility caused by a ban on public Furthermore, it is likely that the BFG adversely affects transport is also relevant for the right to access to women’s rights under CEDAW. First, introducing the healthcare. Knowing that face-covering garments are BFG reduces women’s right to the choice of attire, as it prohibited in public spaces such as hospitals or doctor’s restricts wearing specific garments in public spaces. In offices, women might be less inclined to seek medical this context, it has been argued by feminist scholars that assistance for themselves. This does not only have deciding whether to wear the veil is a form of oppression implications for themselves but potentially for their or choice must be interpreted with respect to women in children as well, as they are then dependent on their the local context. This means that a generalization of all fathers for medical appointments. This runs counter to Dutch Muslim women based on foreign examples cannot the literal wording of Article 12 CEDAW which stresses the be made. In the specific context of the Netherlands, equal access of men and women to healthcare services. Hass argues that the niqab is seen as a way for Muslim It is interesting to note here that Dutch government women to define their identity in a Dutch context, and representatives were called upon by Dutch doctors to this opportunity of self-defining should not be taken remove healthcare facilities from the ban, as they saw away from them.151 a real danger for a decrease in access to healthcare Additionally, the ban is not conducive to women’s for Muslim women.154 Since patients seeking treatment access to education. Herein, the biggest at-risk group is have to identify themselves in order to be admitted women older than 16 years of age. This is mainly due to a doctor’s appointment, the doctors calling for the to the fact that compulsory education ends after the exclusion of healthcare facilities from the ban believe age of 16 (Education in the Netherlands). This entails that that the need for prohibiting face-covering garments women (and men) above this age have the freedom to in healthcare facilities is not necessary from a security choose between pursuing an education or moving on to point of view.155 Consequently, it can be argued that other endeavors. The enactment of the BFG is therefore the Dutch BFG does not conform to CEDAW obligations likely to push women away from choosing the educational as interpreted in light of feminist theory nor to the path. Additionally, a BFG would put women in a position obligations set out by the ICCPR. where they must choose between education and possible career opportunities or honoring their cultural values and societal status, which runs counter to the equal right to 6. CONCLUSION education under Articles 2 and 10 CEDAW. By creating the BFG, the Dutch government partly institutionalizes the This article set out with the intent to understand the stereotypes which the veil aimed to remove. Persistent Dutch BFG in consideration of the applicable international inequality might therefore become entrenched, as legal provisions with an additional focus on women’s education is seen as the stepping stone to a successful rights. Viewed through the lens of the ECtHR, it has been career life. It is not one of the BFG’s aims itself to promote demonstrated that the ban can be evaluated in a similar career opportunities for women. However, in the way manner to the French BFG. Regarding the argument that it is currently working, it actually can have the exact of public safety, the ban is likely to be considered opposite effect, by actively hindering them. legitimate but disproportionate due to the unclear social Considering career opportunities, women will arguably implications that it has on the women affected by the be limited in their choice of career, as their mobility is ban. The argument of open communication and equal hindered by a ban on face-covering garments in public participation appears to be justified, as it is indirectly transport. Again, this conflicts with the right to have based on the principle of living together, which the equal career opportunities. As the current labor market ECtHR considers legitimate. While some questions arise prefers men over women despite women being more regarding the societal consensus of the ban, these are highly certified, the ban creates an extra hurdle for not relevant on an international level, as they are likely women.152 This is also because employers might prefer to fall within the Dutch margin of appreciation. From this, women without full-face veils in order to avoid possible it can be assumed that it is likely that the ban is justified legal consequences that come with the ban. under the ECtHR’s current standard of assessment. While Buerkert, Schut and Szuhai Utrecht Journal of International and European Law DOI: 10.5334/ujiel.533 45 the ECtHR may therefore find the ban acceptable in the 3 ‘The Islamic Veil Across Europe’ BBC (31 May 2018)
17 International Covenant on Civil and Political Rights (adopted 16 40 French BFG (n 17); S.A.S. v France (n 39). December 1966, entered into force 23 March 1976) 999 UNTS 41 Yaker v France (n 39); Hebbadi v France (n 39). 171 (ICCPR) Article 3. 42 Yaker v France (n 39) [1.1]; Hebbadi v France (n 39). From here 18 R. Christopher Prestion and Ronald Z. Ahrens, ‘United Nations on out reference is made to only one of the two cases (Yaker v Convention Documents in Light of Feminist Theory’ (2001) 8 France) since both cases are similar in all relevant respects. Mich. J. Gender & L 1, 16-17 43 S.A.S. v France (n 39) [110]–[111]; Yaker v France (n 39) [8.1]– 19 ibid 17. [8.3]. 20 Janneke Gerards, ‘The Irrelevance of the Netherlands 44 S.A.S. v France (n 39) [110] - [111]. Constitution, and the Impossibility of Changing It’ (2016) 77 (2) Revue interdisciplinaire d’études juridiques 207, 2016 f. 45 ibid [110]; Yaker v France (n 39) [8.3]. 21 Shu-Perng Hwang, ‘Margin of Appreciation in Pursuit of 46 S.A.S v France (n 39) [146]. Pluralism? Critical Remarks on the Judgments of the European 47 ibid [112]–[159]; Yaker v France (n 39) [8.4]. Court of Human Rights on the “Burqa Bans”’, (2020) 20 Human 48 Stephanie Berry, ‘The UN Human Rights Committee Disagrees Rights Law Review 20, 361. with the European Court of Human Rights Again: The Right to 22 The case law of the European Court of Justice is omitted, as it Manifest Religion by Wearing a Burqa’ (EJIL: Talk!, 3 January mainly focuses on the headscarves in horizontal (employment) 2019)
of the person concerned, is justified for health reasons or 107 Assemblée nationale XIIIéme legislature (n 99) 4. on professional grounds, or is part of sporting, artistic or 108 Spohn (n 97) 151. traditional festivities or events.’ Yaker v France (n 39) [8.15]. 109 Bullock (n 105) 142. 79 Yaker v France (n 39) Dissenting Opinion of Judge Yadh Ben Achouar [9]. 110 Jasmin Zine, ‘Between Orientalism and Fundamentalism: The Politics of Muslim Women’s Feminist Engagement’ (2006) 3 80 Yaker v France (n 39) [8.15]. Muslim World J Hum Rts [i], 10. 81 Yaker v France (n 39) [8.10]. 111 ibid. 82 S.A.S. v France (n 39) [77]; Yaker v France (n 39) [3.2]; Hebbadi v 112 Erica Howard, ‘Banning Islamic Veils: Is Gender Equality a Valid France (n 39) [3.2]. Argument’ (2012) 12 Int’l J Discrimination & L 147. 83 Yaker v France (n 39) [8.16]. 113 ibid 156. 84 ibid [8.17]. 114 ibid. 85 Convention on the Elimination of All Forms of Discrimination 115 ibid. Against Women (adopted 18 December 1979, entered into 116 Zine (n 111) 11. force 3 September 1981) 1249 UNTS 13, UN Doc A/34/180 (CEDAW), Preamble. 117 ibid. 86 ibid Article 2. 118 Dianne Gereluk, Symbolic Clothing in Schools: What Should be Worn and Why (Continuum International Publishing Group 87 UN Committee on the Elimination of Discrimination Against 2008), 116–117. Women ‘General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention 119 Howard (n 113) 154. on the Elimination of All Forms of Discrimination against 120 Myriam Hunter-Henin, ‘Why the French don’t like the Burqa: Women’ (19 October 2010) UN Doc CEDAW/C/2010/47/GC.2 Laicité, National Identity and Religious Freedom’ (2012) 61 (3)
International Studies in Gender, State & Society 481, 485 130 ibid. 96 Ulrike Spohn, ‘Sisters in Disagreement: The Dispute Among 131 UN CEDAW Committee, General recommendation No 36 (2017) French Feminists About the Burqa Ban and the Causes of their on the rights of girls and women to education (16 November Disunity’ (2013) 12(2) Journal of Human Rights 145, 147. 2017) UN Doc CEDAW/C/GC/36
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