American Law Review

Civic Integration, Migrant Women and the Veil: at the Limits of Rights?
Siobhan Mullallyn
Controversies surrounding the wearing of the veil by Muslim women in Europe have coincided with a resurgence of interest inpathways to citizenship and integration testing.This article argues that the historical vestiges of discrimination in immigration and citizenship laws persist today in the scrutiny of the cultural aliations and practices of aspiring immigrants and citizens. Muslim women have been placed at the center of such scrutiny, increasingly dened by the arbiters of belonging as les anormeaux. This article explores recent legislative developments on the wearing of the veil in France and examines these developments in the light of the expansion of integration testing and human rights laws normative commitments to more just multicultural arrangements.
. . . It is the situation of women that was . . . taken as the theme of action.The dominant administration solemnly undertook to defend this woman, pictured as humiliated, sequestered, cloistered . . . Around the family life of the Algerian, the occupier piled up a whole mass of judgments, appraisals, reasons, accumulated anecdotes and edifying examples, thus attempting to conne the Algerian within a circle of guilt.1 Le voile integral est un signe militant dappartenance a' un projet de societe qui cree un espace prive au sein meme de lespace public et dans lequel les lois de la Republique nont pas deet.2
Recent years have witnessed a spate of litigation and debate on the wearing of the veil by Muslim women and girls in Europe.3 Reecting broader geo-politics, Muslim women have been placed at the center of the human rights versus Islamic world dialectic. Controversies surrounding the wearing of the veil have coincided in Europe with a retreat from the politics of multiculturalism,4 the language of multicultural accommodation being replaced by policy agendas that are more
Senior Lecturer, Faculty of Law, University College Cork. Research for this article was supported by a grant from the Irish Research Council for the Human Rights and Social Sciences. Research and writing were completed while I was a Senior Fellow in Residence and Fulbright Scholar at the Gender and Sexuality Law Program, Columbia Law School and at the Institute for International Law and Public Policy, Temple University. I am grateful to Katherine Franke, Suzanne Goldberg, Peter Spiro, Jaya Ramji-Nogales, Martha Fineman, Mathilde Cohen, Mairead Enright and Eoin Daly, for their comments and suggestions on earlier drafts. I am also grateful to the editors and to the anonymous reviewers for their helpful comments. 1 F. Fanon, A Dying Colonialism (NewYork: Grove Press, 1967) 38. 2 Assemble Nationale, Rapport DInformation Sur La Pratique Du Port Du Voile Integral Sur Le Territoire National 26 January 2010, 109. 3 For commentary, see: A.Vakulenko,Islamic Dress in Human Rights Jurisprudence: A Critique of Current Trends (2007) 7 Human Rights Law Review 717; D. McGoldrick, Human Rights and Religion:The Islamic Headscarf Debate in Europe (Oxford: Hart, 2006); C. Joppke, Veil: Mirror of Identity (Cambridge: Polity, 2009). 4 C. Joppke,The retreat of multiculturalism in the liberal state: theory and policy (2004) 55 British Journal of Sociology 237.
r 2011 The Author. The Modern Law Review r 2011 The Modern Law Review Limited.
n
(2011) 74(1) 27^56
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Civic Integration, Migrant Women and the Veil
likely to appeal to the values of social cohesion and civic integration.5 The preoccupation with integration of migrant communities is reected in the resurgence of interest inpathways to citizenship and integration testing, both at EU level and in Member States.6 In recent years, this preoccupation has been marked by a willingness to deploy juridical and punitive tools of immigration control to monitor mandatory integration requirements.7 Newly expanded forms of integration testing seek to assess the newcomers commitment to liberal democratic ideals, including gender equality.8 This gender turn in immigration and citizenship practice marks a challenging departure and raises questions as to what are the costs of such inclusion. Securing equality in citizenship laws was a central focus of feminist activism at an international level for the most part of the 20th century, and continues to be a concern today.9 While directly discriminatory laws have disappeared in Europe, the categories of gender, sexuality and race continue to be pivotal to immigration and citizenship practices today.10 The historical vestiges of discrimination in immigration laws persist in the anxious scrutiny to which the cultural aliations and practices of aspiring citizens are subjected. Muslim women have been placed at the center of such scrutiny, increasingly dened by the arbiters of belonging and membership as les anormeaux.11 The recently published Report of the French Parliamentary Commission on the wearing of the voile integral (face-veil), the Gerin Report, proposes a series of measures, un accord republicain, designed to restrict the wearing of the burqa and niqab on French territory.12 These measures include expanded integration conditions, to be applied to aspiring immigrants and citizens. Building on recent
5 See: E. Guild, C. A. Groenendijk and S. Carrera, Illiberal Liberal States: Immigration, Citizenship and Integration in the EU (Farnham: Ashgate, 2009); D. Kostakopoulou, Matters of Control: Integration Tests, Naturalisation Reform and Probationary Citizenship in the United Kingdom (2010) 36 Journal of Ethnic and Migration Studies 829. 6 See, for example: Home Oce, UK Border Agency,The Path to Citizenship: Next Steps in Reforming the Immigration System (February 2008). On the compatibility of citizenship testing with liberalism, see: EUDO Forum on Citizenship, (2010) How Liberal are CitizenshipTests? at http://eudocitizenship.eu/citizenship-forum/255-how-liberal-are-citizenship-tests (last visited 18 October 2010); On the expansion of integration testing in Europe, see: CitizenshipTests in a Post-National Era International Journal of Multicultural Societies Special Issue (2008) Vol 10(1) discussing recent developments in the Netherlands, Denmark, France and the UK. See alsoMigration and Citizenship Attribution: Politics and Policies in Western Europe Special Issue (2010) Vol 36(5) Journal of Ethnic and Migration Studies edited by M.Vink and R. de Groot. 7 C. Dauvergne, Globalizing Fragmentation: New Pressures on Women Caught in the Immigration Law ^ Citizenship Law Dichotomy in S. Benhabib and J. Resnik, Migrations and Mobilities: Citizenship, Borders, and Gender (NewYork: NewYork University Press, 2009) 333^355, 334. 8 In France, see: Rapport DInformation Sur La Pratique Du Port Du Voile Integral Sur Le Territoire National ((Paris: 26 January 2010) (Report of the Gerin Commission). 9 See: ILA, Final Report onWomens Equality and Nationality in International Law (London: International Law Association, 2000). Article 9 of the UN Convention on the Elimination of All Forms of Discrimination Against Women, on nationality, remains one of the most heavily reserved of the treatys provisions. For the full text of reservations, see http://www.un.org/womenwatch/daw/ cedaw/reservations.htm (last visited 15 October 2010). 10 See: S. A. Berger,Production and Reproduction of Gender and Sexuality in Legal Discourses of Asylum in the United States (2009) 34 Signs: Journal ofWomen in Culture and Society 659, discussing the continuing centrality of the categories of gender and sexuality in asylum law. 11 M. Foucault and others, Les Anormaux: Cours au Colle' ge de France (1974^1975) (Paris: Gallimard/ Seuil, 1999). 12 n 2 above, 187.
28
r 2011 The Author. The Modern Law Review r 2011 The Modern Law Review Limited. (2011) 74(1) 27^56
Siobhan Mullally
jurisprudence of the Conseil dEtat, the Report suggests that the wearing of the niqab or burqa may reect a failure to comply with essential French values, justifying a refusal of citizenship or residence status.The establishment of the Parliamentary Commission in June 2009, followed on from a speech delivered by President Nicolas Sarkozy at the Palace of Versailles, in which he declared that the burqa was not welcome on French territory.13 Clearly seeking to position the debate as one of French values, he argued that the issue was not a question of religion, but rather a question of protecting the liberty and dignity of women. Debates on the wearing of the veil in France have coincided with a consultation on national identity, Le grand debat sur lidentite nationale which, Eric Besson (Minister for Immigration), has said, will seek to redene familiar concepts of citizenship and national belonging.14 Coinciding with the resurgence of interest in integration, proposals to restrict the wearing of the veil have emerged in several western European states.15 The veiled Muslim woman presents a visible challenge to the states coercive powers of surveillance and exclusion. By speaking back to dominant cultural norms, to the dominant ethnos of the state, she challenges the states (and Europes) project of governance. In liberal democratic states, the law is presumed to support the pursuit of competing conceptions of the good life. In practice, we know that this freedom is strictly regulated and the choices made, subject to constraints. For the aspiring citizen or immigrant, the failure to make the right choices justies the heavy intervention of the state. This intervention is evident in newly dened pathways to citizenship, and in the introduction of juridical forms and statuses, such as the welcome and integration contract (contrat dacceuil et dintegration, (CAI)) in France and the attachment of integration conditions to residence, family reunication and citizenship statuses throughout Europe.16 Through such new
13 See A. Chrisas,Nicholas Sarkozy says Islamic veils are not welcome in France The Guardian 23 June 2009 at http://www.guardian.co.uk/world/2009/jun/22/islamic-veils-sarkozy-speech-france (last visited 15 October 2010). 14 The full title of this ministerial position is: Minister for Immigration, Integration, National Identity and Solidarity Development. See: Le the' me de lidentite nationale divise a' droite comme a' gauche Le Monde 29 October 2009 at http://www.lemonde.fr/politique/article/2009/10/29/ le-theme-de-l-identite-nationale-divise-a-droite-comme-a-gauche_1260381_823448.html (last visited 15 October 2010). 15 Belgium is the most recent state to consider legislation imposing a general restriction on the wearing of the burqua or niqab in public spaces.The bill, approved unanimously by the lower chambers Home Aairs Committee on 31 March 2010, would make it a crime to be in a public place with ones face partially or wholly concealed in a way that would make identication impossible.Violators would be subject to a ne of 15 to 25 euros and/or a prison sentence of one to seven days. Twenty out of 589 municipalities in Belgium already prohibit wearing full Muslim veils in public. Similar local restrictions exist in parts of Italy and the Netherlands. See: Human Rights Watch, Belgium, Muslim Veil Ban Would Violate Rights (Brussels, 21 April 2010) at http:// www.hrw.org/en/news/2010/04/21/belgium-muslim-veil-ban-would-violate-rights (last visited 15 October 2010). See also n 2 above at 71. 16 In France, see: Loi no 2003^1119 relative a' la ma| trise delimmigration, au sejour des etrangers en France et a' la nationalite of 26 November 2003 and Loi no 2006^911 relative a' limmigration et a' lintegration. See also: Loi no 2007^1631 relative a' la ma| trise de limmigration, a' lintegration et a' lasile of 20 November 2007, introducing the Contrat dacceuil et dintegration pour la famille (CAIF), Article 7. At EU level, see: Council Directive concerning the status of third-country nationals who are long-term residents, 2003/109, [2004] OJ L 16/44, 23.1.2004 and; Council Directive 2003/86/EC of 22 September 2003
29
technologies of citizenship, the immigrant is pushed to manage her own pathway to citizenship. She must earn citizenship,17 demonstrating integration and acceptance of the non-negotiable norms of the dominant culture. These norms include prescriptions as to acceptable forms of dress and covering, and as with debates on the wearing of face-veils, a demand to be visible, viewed, in the French context as an essential precondition to vivre-ensemble (living together). Muslim women and girls have invoked the protections of the European Convention on Human Rights (ECHR) to support their claims to religious freedom and to challenge restrictions imposed on religious dress.18 These challenges, however, have largely failed. Recognition and inclusion in the universal register of rights discourse comes at a cost. As with mandatory civic integration requirements in the immigration context, the promise of empowerment through rights is constrained, and limited. The recent advisory opinion of the Conseil dEtat on proposals to prohibit the wearing of the burqa and niqab in public spaces in France,19 demonstrates that rights protections, (both ECHR and constitutional), may impose some limits on the terms of belonging and restrictions imposed by states. The continuing willingness of states to test the limits of human rights law, however, are evident in the recent adoption by France of legislation prohibiting the wearing of the face-veil,20 despite the advice given by its own Conseil dEtat as to the potential conict with constitutional and ECHR protections. The French Government has also repeatedly ignored the criticisms of UN human rights bodies. UN human rights treaty bodies have proven themselves willing to challenge restrictions on the wearing of the veil in France and to question their impact on minority and immigrant communities.Theconstructive dialogue pursued by the treaty bodies suggests that international human rights law, drawing on a multicultural conception of citizenship and a promise of cosmopoon the Right to Family Reunication, OJ L 251/12, 3.10.2003. For commentary, see: S. Carrera, In Search of the Perfect Citizen?:The Intersection Between Integration, Immigration, and Nationality in the EU (Leiden: Martinus Nijho Publishers, 2009) ch 6 and; M. Beaujeau,Le modele franc ais dintegra' tion dans tous ses etats: Entre rearmations republicaines et tentations populistes (2008) 10 International Journal on Multicultural Societies 27. On developments on family reunication at the EU level, see: D. Kostakopoulou, S. Carrera and M. Jesse,Doing and Deserving: Competing Frames of Integration in the EU in E. Guild et al, n 5 above. Earning the right to citizenship, by speaking English, working hard and paying taxes, obeying the law and demonstrating active citizenship is at the centre of a new architecture of citizenship, introduced in the UK Borders, Citizenship and Immigration Act 2009. See further: D. Kirwan, Becoming a British Citizen: A Learning Journey Citizenship Review (December 2007) at http:// www.justice.gov.uk/reviews/docs/becoming-a-citizen.pdf (last visited 18 October 2010); UK Home Oce Secure Borders, Safe Havens: Integration with Diversity in Modern Britain (CM 5387, 2002); Impact Assessment of Earned Citizenship Proposals Borders, Citizenship and Immigration Bill, 15 January 2009 at http://www.ialibrary.berr.gov.uk/ImpactAssessment/?IAID=c1edf4ef304242a19eab026d6c72d97a (last visited 18 October 2010). See: Leyla Sahin vTurkey (Application no 44774/98), Grand Chamber Judgment of 10 November 2005, (2005) 19 BHRC 590; Dogru v France App 27058/05 [2008] ECHR 1579 (4 December 2008); R (Begum) v HeadTeacher and Governors of Denbigh High School [2007] 1 AC 100, discussed further below. Conseil dEtat, Etude relative aux possibilites juridiques dinterdiction du port du voile integral, 25 March 2010. Project de Loi, interdisant la dissimulation du visage dans lespace public, No 2520 19 May 2010, passed by the National Assembly 13 July 2010. The law is to be referred to the Conseil Constitutionnel, for an assessment of its constitutionality.
17
18
19 20
30
Siobhan Mullally
litanism, has the normative resources to challenge thicker cultural requirements of belonging imposed by states. The extent to which human rights bodies will be willing to apply the same standards in the immigration and citizenship context, however, is not yet clear. The advisory opinion of the Conseil dEtat did not challenge the Gerin Commissions proposals concerning immigration and citizenship practices, and indeed its own recent jurisprudence would suggest an acceptance of integration conditions that include thicker restrictions, such as prohibitions on the wearing of the face-veil for immigrants and aspiring citizens.21 The expansion of integration testing, and the imposition of thicker integration conditions has not yet been tested under European or international human rights law. Yet, this expansion clearly engages rights that are protected both at European and international levels ^ rights to religious freedom, freedom of expression, to cultural identity, to private and family life and to non-discrimination. International law has typically had little to say about state practices on immigration and citizenship. Indeed citizenship laws are sometimes viewed as the last bastion of state sovereignty. More recently, however, we have seen a greater willingness from international human rights bodies to question the historical discretion enjoyed by states in immigration matters.22 States, however, have pushed back against the expansion of rights to non-citizens, appealing to national security, public order and to requirements of cohesion and integration.23 The values of secularism and gender equality have also been deployed in this push back.There is a danger that with this push, the promise of cosmopolitanism that provides the normative underpinnings of human rights law, and the possibility of more just multicultural arrangements, may be lost.The potential of human rights law to challenge states prerogatives in matters of immigration and citizenship and to protect the rights of migrants may also be severely diminished.
FRANCE:THE VEIL, SECULARISM AND NATIONAL IDENTITY
On 26 January 2010, the widely anticipated Parliamentary Commission Report on the wearing of the voile integral (face veil) in France was published.24 The 200 page report includes recommendations for legislative and policy initiatives to deter and limit the practice, which is described as a challenge to the French Republic and to republican values. Against those who question Frances preoccupation with the veil, the Report argues that the veil represents more than a piece of cloth; it reects a system of values, a set of social and family constraints that weigh on the veiled Muslim woman.25 The measures proposed by the Commis 21 Decision du Conseil dEtat du 27 Juin 2008, available at n 2 above, 642. 22 See for example, CERD General Recommendation XXX, pt 4. See also: D. S.Weissbrodt, The Human Rights of Non-Citizens (Oxford and New York: Oxford University Press, 2008). At EU level, see Chakroun v Minister van Buitenlandse Zaken, C-578/08, European Court of Justice, 4 March 2010, on the lawfulness of integration abroad requirements imposed by the Netherlands in the context of the Family Reunication Directive, (Council Directive 2003/86/EC of 22 September 2003 on the right to family reunication). 23 See generally: A. Edwards and C. Ferstman, Human Security and Non-Citizens Law, Policy and International Aairs (Cambridge: Cambridge University Press, 2010). 24 n 2 above. 25 ibid, 45.
31
sion are presented as un accord republicain,26 clearly reecting the desire to reinforce and bolster a collective sense of national identity, designed to dene the terms of belonging.The grand debate on national identity and proposals for restrictions on veiling in public spaces have taken place against a background of expanded integration testing for immigrants and aspiring citizens in France, which clearly place the responsibility of integration on the aspiring immigrant. This requirement to self-discipline, with potentially punitive consequences in the event of failure is continued, and strengthened further, in the Commissions reform proposals. The Gerin Report recommends the introduction of prohibition on wearing the burqa or niqab, to be applied to all persons using or accessing public services. A more general prohibition on face-veiling, the Report suggests, could be considered at some time in the future.27 The decision to recommend a limited prohibition was met with a heated response from Parliament, with some representatives calling for a broader prohibition to apply to all public spaces, and rejecting what they referred to as a demi-loi.28 Their response reects broader divisions on the role of law in regulating the practice of veiling in France. Notably, however, concern as to the impact of the Reports proposals on Muslim women and girls, and on minority and immigrant communities more generally, was voiced by only a few. The Chair of the Commission, Andre Gerin (Communist MP), highlighted the possibility that a general prohibition on veiling might be struck down by the Constitutional Court or by the European Court of Human Rights and the necessity of working within the limits of rights protections. These limits are pushed, however. By restricting the scope of the proposed prohibition, the Commission hopes that the requirements of proportionality, key to ECHR protections on religious freedom and freedom of expression, will be met. The concern to work within the limits of proportionality requirements, and to ensure eectiveness, is evident also in the discussion on enforcement. Rather than proposing the imposition of nes or other penalties for non-compliance, the Report proposes that a refusal to remove a face-veil will lead to a denial of public services, though how this will be enforced in public transportation ^ on the Paris metro, for example ^ is unclear. The message and implications of this prohibition are clear, however. Cultural dierence is to be pushed to the realms of the private; the public sphere is to remain culture free, neutral, universal. The disciplinary reach of the state is also expanded, to encompass multiple sites of contact and surveillance. (This claimed neutrality of the public sphere must be questioned, however, as a substantive, thicker conception of French national identity, and of secularism, are revealed in the Reports proposals.)29 The inquiry has been criti-
26 ibid, 185. 27 n 2 above 189. 28 See: Voile integral: plusieurs deputes denoncent une demi-loi 26 January 2010 at http:// www.leparisien.fr/societe/voile-integral-plusieurs-deputes-denoncent-une-demi-loi-26 -012010-792402.php (last visited 16 October 2010). 29 On the shifting nature of laicite, see P. Kahn,La laicite Est-elle une valeur? (2007) 39 SPIRALE Revue de Recherches en Education 29; J. R. Bowen, Can Islam Be French? Pluralism and Pragmatism in a Secularist State (Princeton: Princeton University Press, 2010); E. M. Daly, Religious Liberty and the Rawlsian Idea of Legitimacy: the French La| cite Project between Comprehensive and Political Liberalisms (2010) 5 Religion and Human Rights 11.
32
Siobhan Mullally
cised by leading members of the Muslim community, in France, and elsewhere, as further stigmatising Islam by focusing on a marginal phenomenon amongst French Muslims. It is estimated that approximately 1900 women wear the faceveil in France. Given such small numbers, the necessity and proportionality of the States response might be questioned, even if were to accept that a legitimate aim was being pursued. The Report acknowledges that the wearing of the faceveil in France is a marginal phenomenon, but argues that it is the tip of an iceberg, the visible face of a broader phenomenon. Echoing the majority judgment of the European Court of Human Rights in the Leyla Sahin case,30 restrictions on veiling are represented as a response to a pressing social need: to safeguard against rising religious fundamentalism, and in the French context, the specter of communitarianism and salasme.31 The Gerin Reports proposals on immigration and citizenship laws have attracted less commentary, reecting the seeming inevitability and greater legitimacy of coercive measures in this eld.The proposed reforms go beyond a policing of the public sphere and, building on established precedents, seek to sanction private ways of life that do not conform to republican values. The proposals do not depart from, but rather continue, now well established trends in immigration and citizenship law, both in France and more broadly at EU level. The Commissions Report recommends changes to legislation governing immigration and asylum, to explicitly include equality between women and men, and secularism, amongst the values that applicants for family reunication or long-term residence should demonstrate familiarity with.32 Drawing on the formula of the Conseil dEtat, in its 2008 Mme M decision, the Commission recommends refusal of a residence permit for anyone manifesting a radical religious practice, incompatible with republican values, including, in particular, the value of gender equality. Such a refusal, the Commission suggests, would be justied on grounds of the applicants failure to integrate.33 On naturalisation, the Commission recommends amending the Civil Code to explicitly provide that a radical religious practice, incompatible with essential French values, notably the principle of equality between women and men, would be considered a failure of assimilation,un defaut dassimilation.34 The proposed restrictions on veiling are justied as necessary to safeguard the principles of la| cite (secularism), liberty, equality between women and men, and fraternite.The Report notes that Frances commitment to secularism, set out in article 1 of the Constitution and in the 1905 law on separation of church and state, imposes constraints on the State and state action. Notably, however, constraints on the display of religious symbols are presumed to also apply more broadly, as part of the social contract to which all must adhere. Manifestations of religious belief, the Commission argues, should be conned within the cultural limits of the nation state,dans les limites culturelles de la communaute nationale.35 The application
30 Leyla Sahin vTurkey (Application no 44774/98) Grand Chamber Judgment of 10 November 2005 (2005) 19 BHRC 590. 31 ibid, 50. 32 n 2 above, Proposition no 16 189. 33 ibid. 34 ibid. Proposition no17 189. 35 ibid 87.
33
of the principle of secularism in this way in France, however, is contested.36 As the Commission itself notes, the consensus of legal opinion presented at the hearings points to a more limited application of the principle of secularism, given the commitment to constitutional and ECHR protections on manifestation of religious beliefs, and the distinctions made between regulations to be imposed on public and private spheres. In his presentation to the Commission, Bertrand Mathieu argues that the principle of secularism cannot be applied so as to regulate interpersonal relations and interactions in general. Ultimately the Commission concludes that the wearing of the face-veil in the public sphere, in general, while not violating the legal requirement of secularism, is nonetheless contrary to the spirit of the 1905 law and Frances constitutional commitments. President, Sarkozys comments in which he calls for restraint in the display of religious symbols following the December 2009 referendum in Switzerland on the construction of minarets, are cited by the Commission in support of its conclusions.37 The specic context in which Nicholas Sarkozys comments were made are not addressed, however, and the Commission does not explain why the wearing of the face-veil, in particular, rather than the display or wearing of any religious symbol in a public space, would be considered contrary to the spirit of secularism. On the principle of liberty, the Commission identies the ght against the wearing of the face-veil as a work of emancipation,un oeuvre de liberation, necessary to safeguard the principle of liberty. It is clear that the possibility of a Muslim woman choosing to veil is viewed with suspicion. The Report briey acknowledges that a multiplicity of motivations may lie behind the wearing of the veil, and that a diverse range of reasons were presented at the Commissions hearings to explain the practice. Ultimately however, this plurality is erased in the nal Report. The wearing of the face-veil, the Commission concludes, represents: une servitude volontaire, libertes alienees et situations de contraintes.38 An exchange between Commission member, Mme Berenge' re Poletti, and the Muslim Council of France (CFCM), in the course of the hearings, is particularly instructive on this point.39 Calling on the CFCM to condemn the practice of veiling, Mme Poletti, on the one hand, denies the possibility that individual choice might underpin a decision to wear the veil, and, on the other hand, is critical of what she perceives as the refusal of the veiled woman to integrate into French society. It is not the restriction of autonomy, it seems that is disturbing, but rather that the wrong choices have been made. The President of the CFCM, Moussaoui, in the course of his submission to the panel, called for respect for dierence (le droit a la dierence), and appealed to the freedom of the public space and to the right to expression of individual liberty.40 In essence, he invoked the values lauded by the French Republic. The decision to wear the niqab in France, he argued, was often a choice, hyper-voluntaire, one taken as an expression of religious belief by a minority of
36 37 38 39 40
See P. Kahn, n 29 above. n 2 above, 87, citing Le Monde 9 December 2009. ibid, 40. ibid, 379. ibid, 382.
34
Siobhan Mullally
Muslim women, rather than a consequence of religious prescription. Moussaouis comments were echoed by the head of the Grand Mosque of Paris, Boubakeur, who pointed to the myriad possibilities that lay behind the decision to wear the burqa or niqab. For some, he said, it was an act of teenage rebellion, designed to challenge and provoke.41 His arguments however, are given little weight in the Commissions conclusions. Postcolonial feminist theory has highlighted the tendency to homogenise third world women, leading to the creation of a composite, singular third-world woman.42 Drawing the line on the wearing of the veil is, as Scott notes, a way of insisting on the timeless superiority of French civilization.43 The claims of feminists from the global North to political agency have often been supported by a presumed special moral responsibility to save the downtrodden women of the colonies, who appear as the natural and logical white womans burden.44 This claimed moral responsibility appears throughout the Gerin Commissions report, Mme Sihen Habchi, the Director of the feminist organisation Ni Putes Ni Soumises, specically appealing to the importance of Frances role in assuming the burden of this challenge.45 The continuing reach of colonial preoccupations is evident in the Commissions reections on liberty and equality. In his foreword, the Rapporteur, Eric Raoult recounts a meeting in Damascus, outside Syrias most famous mosque, the Umayyad, with Farah, a young veiled woman originally from Marseille. He concludes his living testimony with an emotional appeal: it is pour les yeux de Farah (for the eyes of Farah), that he and his fellow Commission members have worked,Farah de Damas, du Koweit ou du Golfe, mais avant tout, Farah de Marseille!46 In this appeal, the Muslim woman is positioned as abject victim, justifying the States assertion of the strong arm of state sovereignty, and of a more aggressive liberalism. As Joan Scott notes in her treatiseThe Politics of theVeil, through decolonisation and its aftermath, the veil in France has continued to serve as a potent political emblem. For some, she notes, it is an expression of agency, for others a sign of victimization, and for many a practical instrument of warfare.47 That the veil has been at the centre of what Scott characterises as Frances struggle to come to terms with its colonial past and its ethnically mixed population in the present, should not, therefore, be surprising.48 The denial of liberty that the wearing of the face-veil is presumed to represent, is linked by the Gerin Commission to the principle of gender equality. In political statements on the proposed restrictions, and in the Commissions conclusions, the face-veil is repeatedly represented as a denial of gender equality, and an intolerable symbol of control over female sexuality. Habchi calls on the Commission to challenge rising religious fundamentalism in France, arguing that the freedom of the
41 ibid, 435. 42 C. Mohanty,UnderWestern Eyes: Feminist Scholarship and Colonial Discourses (1988) 30 Feminist Review 61, 62. 43 J.W Scott,The Politics of theVeil (Princeton, NJ: Princeton University Press, 2007) 89. . 44 U. Narayan, Dislocating Cultures: Identities,T raditions, andThird-World Feminism (NewYork: Routledge Publishing, 1997) 19. 45 n 2 above, 149. 46 n 2 above. 47 n 43 above, 89. 48 ibid, 91.
35
public space, and gender equality within that space, is being tainted and constrained by this force. Speaking as a Muslim, a feminist and a French citizen, she calls for a new social pact, one that recognises the principle of secularism as a sine qua non of democracy.49 In Habchis submission, we nd echoes of the European Court of Human Rights in the Refah Partisi case,50 where the Court positions Islam and the Sharia in opposition to democracy, a totalising universal other, one with which dialogue, contestation and negotiation in the public sphere is not possible. Habchi singles out President Obamas 2009 Cairo speech, in which he sought to reach out to the Muslim world, as displaying a willingness to trade in, and compromise on, womens human rights.51 Ni Putes Ni Soumises has supported an outright prohibition on the wearing of the face-veil in public spaces, viewing this prohibition as essential to safeguard secularism and gender equality. In fact, Ni Putes ni Soumises has not only supported the prohibition on the wearing of the face-veil, but has actively campaigned for state intervention.52 The pursuit of gender equality is positioned in opposition to a multicultural politics, one which would allow a role for religious discourse, expression or manifestation in public spaces. Though Habchi does not cite Susan Moller Okin, her position reects the early polarisation of feminism and multiculturalism and the now familiar refrain,multiculturalism is bad for women.53 The possibility of negotiating just multicultural arrangements, that do not exclude the observant religious woman who veils, is denied in this polarising discourse. A more complex equality, one that is cognisant of the fact of dierence, and the signicance of such difference, is rejected here, as the multiplicity of meanings that may lie behind the wearing of the veil are erased. For philosopher Elisabeth Badinter, the wearing the burqa or niqab represents a rupture with the continuous progress made by women since the 1960s, including in the freedom to wear, or not to wear, what one wants. It is, she argues, a perverse practice.54 In Badinters comments, however, and in much of the Commissions report, there is a failure to turn the gaze back.55 As Badiou notes, female sexuality in contemporary western societies, including in France, is subject, as we know, to ever more proliferating technologies of control.56 Commercial control is more constant, more certain, more massive than patriarchal control ever could be.57 In Badinters comments, despite the reference to womens freedom to choose how to dress, there is an underlying demand that women be visible, that female sexuality be expressed and circulated in a way that signals availability, vis-
49 ibid, 299. 50 Refah Partisi (Welfare Party) vTurkey 2003 -II 37 EHRR 1 (GC). For commentary see: D. McGoldrick, ccommodating Muslims in Europe: From Adopting Sharia Law to Religiously Based A Opt Outs from GenerallyApplicable Laws (2009) 9 Human Rights Law Review 603. 51 ibid, 306. 52 See http://www.niputesnisoumises.com/burqa/(last visited October 2010). 53 S. M. Okin and others, Is Multiculturalism Bad for Women? (Princeton, NJ: Princeton University Press, 1999). 54 n 2 above, 315. 55 This phrase is borrowed from: B. Cossman,Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the Postcolonial Project (1997) 2 Utah L Rev 525. 56 A. Badiou, Le Monde 22 February 2004. 57 ibid.
36
Siobhan Mullally
ibility and acceptance of the dominant cultural norms. The possibility that womens agency, autonomy and equality may be constrained in many ways, and by many kinds of religious practices, is not acknowledged by the Commission, however. The veiled Muslim woman is positioned as an abject victim, incapable of autonomy or agency, or conversely, as a dangerous, threatening fundamentalist. Juxtaposed against the veiled Muslim woman as an abject victim is the threatening salaste, rejecting the social mores of the Republic and manifesting a hyper individualisme religeux.58 This hyper-individualism is, in turn, represented as a threat to the value of fraternite, a refusal of the bonds of solidarity and connection that bind the nation-state. In its nal recommendations, the Commission appeals to the value of fraternite to justify its proposed restrictions on wearing of the face-veil. Elisabeth Badinter and others criticise the absence of reciprocity that, it is argued, follows from the wearing of a face-veil. The practice of veiling is viewed as a barrier to communication,59 but also more broadly as a refusal to assimilate. The Reports conclusions reect a deep-rooted suspicion of multiculturalism, as threatening community cohesion and the transmission of shared values. The rights claims asserted by Muslim women and girls to support the practice of veiling are rejected as instrumentalising human rights norms to support communitarian (non Republican) goals. The appeal to the House of Lords in the 2005 Begum case in the UK,60 brought by a young Muslim woman, is specically cited as an example of one such communitarian challenge.61 This criticism falls within Frances broader contestation of minority rights claims, long a feature of its engagement with UN human rights treaty bodies, and one that is premised on the claimedindivisibility of the French Republic. In accusing the veiled woman of refusing the bonds of solidarity, refusing literally to live together (vivre ensemble), there is a curious denial of the legitimacy of dierence.The minority womans way of life is problematised as damaging to the cohesion required to safeguard republican values. Reecting a broader European trend, integration is viewed not as a two-way process, but rather one that requires a constant process of adaptation by minority and immigrant communities, to dominant cultural norms. The possibility of equal participation in a process of democratic iteration, in an ongoing negotiation and renegotiation of cultural norms, is constrained or altogether denied.62 Pre-empting the presentation of the Commissions Report to Parliament, a leading gure in the governing UMP party, Jean Cope, presented proposals to Parliament for a sweeping prohibition on the wearing of the face-veil in all public spaces.63 His proposal received support, including from Ni Putes ni Soumises. However, the legality of such expanded restrictions, and its potential for further stig-
58 59 60 61 62
ibid, 452. n 2 above, 114 and 120. R (Begum) v HeadTeacher and Governors of Denbigh High School [2007] 1 AC 100. n 2 above, 82. On democratic iterations, see S. Benhabib, Cosmopolitan Norms, Human Rights and Democratic Iterations (2008) at http://www.brown.edu/. . ./cosmopolitan%20norms,%20human% 20rights%20and%20democratic%20iterations2.doc (last visited 18 October 2010). 63 See full text of the legislative proposal at http://www.jeanfrancoiscope.fr/blog/index.php?52-discours-de-jean-francois-cope-sur-le-port-du-voile-integral (last visited 18 October 2010).
37
matisation of Muslim women and girls has been questioned. Following a request from Prime Minister Francois Fillon, to consider the legality of a broader prohi bition on the wearing of the face-veil in public spaces, the Conseil dEtat published its opinion on 25 March 2010, concluding that a general restriction would be contrary to French constitutional and ECHR protections of religious freedom and freedom of expression.64 The introduction of further restrictions on veiling would be permissible, they argued, but could only be justied in limited contexts, by precisely dened requirements of public order or security. A sweeping prohibition would be a disproportionate response to public order or safety concerns, lacking in the precision and specicity necessary to justify restrictions on fundamental freedoms. The appeal to threats to public order found in the Gerin Commissions Report is, they conclude, too expansive, without foundation in established jurisprudence.65 On the principle of secularism, echoing the comments of Bertrand Mathieu and others, and citing its own report, Un Siecle de La| cite (a century of secular ism),66 the Conseil dEtat concludes that la| cite in France is founded on three key principles: neutrality of the State, religious freedom and respect for pluralism. Of particular note is the conclusion that laicite applies to the state and its agents, but not more broadly to society or individuals at large. The Conseil dEtat takes a similar position on the application of the principle of gender equality, asserting the primacy of individual autonomy, as recognised in both French constitutional jurisprudence and that of the European Court of Human Rights.67 The principles of dignity or equality between women and men, taken together or in isolation could not, they argue, be applied to support a general prohibition on wearing the face-veil. As the Conseil dEtat notes, the wearing of the veil is not the only context in which disputes on human dignity and equality arise. Divergent views exist on the circulation of images of the female body and its implications for the protection of human dignity. These tensions are highlighted in the Leyla Sahin case, whereTulkens J, in her dissenting judgment, points to the need for a harmonised interpretation of the principles of autonomy, secularism and equality. Ulti mately, the Conseil dEtat conclude that equality must be premised on the safeguarding of individual autonomy; such is the conception of human dignity, which underpins both French constitutional and ECHR jurisprudence on the rights to privacy, personal identity and religious freedom. The principle of equality, though reecting an essential value, cannot be applied so as to constrain the exercise of individual autonomy through a general restriction on the face-veil. Such a conception of equality would be too thick, being too exclusionary of the dierences within the categories of women and gender. The opinion of the Conseil dEtat does not touch directly on immigration law or the Gerin Commissions proposals concerning integration conditions and their potential application to the practice of veiling. Its own 2008 decision in the Mme
64 n 19 above. 65 ibid, 25^26. 66 Conseil dEtat. Rapport public 2004: jurisprudence et avis de 2003. Un sie' cle de la| cite (Etudes et documents, Conseil dEtat, no 55, Paris; La Documentation franc aise. 67 n 19 above, 19^20.
38
Siobhan Mullally
M case, on naturalisation, is noted as part of the existing body of restrictions on veiling that apply in France. In its discussion on the permissible scope of public order restrictions, the Conseil dEtat distinguishes the disruption to public order caused by the practice of polygamy (being contrary to the requirements of normal family life in France),68 from the wearing of the face-veil.While the former, in its view, justied restrictions because of the threat to public order, the latter did not. Beyond this, however, the Gerin Commissions proposals on immigration and integration testing are not discussed. The possibility remains therefore, that the expansion of restrictions on veiling, to apply in the context of testing for integration, could be upheld in any future challenges. The exceptional position of the migrant woman, at the limits of rights, is thereby reinforced, and the seeming legitimacy of more stringent integration conditions remains unchallenged. Despite the advisory opinion of the Conseil dEtat, and in a remarkable display of political obstinacy, the National Assembly nonetheless approved legislation prohibiting the wearing of the face-veil in public spaces. The advisory opinion, in suggesting that the prohibition be limited in scope, was rejected as failing to address the true problem posed by the wearing of the face-veil.69 In the explanatory memorandum Expose des Motifs, accompanying the Projet de Loi presented by Prime Minister Francois Fillon, repeated reference is made to the social contract of republicanism, and to the need to safeguard social cohesion and the dignity of the person.70 The wearing of the face-veil, the refusal of the demand to be visible, is presented, not only as a security threat, but as a denial of the solidarity and of the specic forms of connection and belonging required by the French Republic. It is also viewed as a public manifestation of inequality between women and men and damaging, not only to the dignity of the veiled woman, but to those who share public spaces with her.This latter justication, in particular, suggests the possibility of sweeping powers on the part of the State to restrict forms of expression, whether religiously motivated or otherwise, that the broader public deem oensive. It is precisely the desire to guard against such majoritarian impulses that underpins modern human rights law. Given the vulnerability of migrant communities, the sweeping nature of this justication is particularly worrying. On the apparent tensions between the requirements of dignity and liberty or autonomy, the expose accompanying the legislation suggests that the prohibition is in keeping with restrictions on liberty found in the Conseil dEtats own jurisprudence on the requirements of dignity and the Conseil Constitutionnels earlier refusal to recognise polygamy as contrary tola vie familiale normale. This conclusion however, is not at all clear. Recognising the potential for conict with the requirements of both French constitutional law and the ECHR, the legislation was referred to the Conseil Constitutionnel for a decision as to its constitutionality. The Courts decision, upholding the constitutionality of the proposed law, with the exception of its application to religious spaces open to the public, was handed down on 7 October 2010.71 It diers
68 See: Conseil constitutionnel no 93-325 DC du 13 aout 1993 sur la loi relative a la maitrise de limmigration et aux conditions dentree, daccueil et de sejour des etrangers en France, cited at n 19 above, 27. 69 n 20 above, Expose des Motifs, 3^5. 70 ibid. 71 Decision no 2010-613 DC du 07 octobre 2010, Loi interdisant la dissimulation du visage dans lespace public.
39
from the advisory opinion of the Conseil dEtat in nding that the appropriate balance or conciliation is found between the safeguarding of public order and the protection of constitutional rights.72 The practice of covering ones face in public is accepted as a potential security threat, and whether voluntary or not, as being incompatible with the constitutional principles of liberty and equality.The Court diers in its interpretation of how individual autonomy informs the constitutional principles of liberty and equality. For the Conseil dEtat, the primacy of individual autonomy must guide the interpretation of constitutional and ECHR commitments to equality and dignity.The decision of the Conseil Constitutionnel does not make reference to the ECHR or potential Convention claims. It remains to be seen how these apparently conicting values will inform any future proceedings before the Strasbourg court, as there will surely be.
REDISCOVERING THE VEIL: AN EVOLVING POLITICS OF BELONGING
Throughout the Gerin Commissions Report, there is a questioning of the normativity of Muslim families. Like Antigone, the veiled Muslim woman represents a non-normative family and a set of kinship relations that do not conform to dominant cultural norms.73 The Commission justies its proposed scrutiny of the private sphere, given what it identies as thebarbarism of the practice of veiling, and, turning feminist critiques of the public/private divide on their head, notes that such distinctions cannot be justied.The policing of the intimate lives of immigrant others will be familiar to immigration lawyers, and, as Sherene Razack notes, in the post 9/11world,Imperilled Muslim women and Dangerous Muslim men have become familiar tropes in immigration and citizenship debates.74 The politics of belonging is intimately linked with the dirty work of boundary maintenance.75 The Mme M decision of the French Conseil dEtat brings this work into stark relief.76 In June 2008, the Conseil dEtat, upheld a decision to deny citizenship to Mme M, on the ground that her radicalpractice of Islam was incompatible with essential French values, specically gender equality. The Court agreed that Mme M had failed to satisfy the test of assimilation required for the grant of citizenship. The Commissaire du Gouvernement, in her Conclusions submitted to the Conseil dEtat, stated that the refusal to grant citizenship to Mme M was not based solely on her practice of wearing the niqab, but rather on her whole way of life, la vie quotidienne.77 Supporting this conclusion, reference was made to her mornings spent
72 ibid paras 5^6. 73 See: J. Butler, Antigones Claim (NewYork: Columbia University Press, 2000). 74 S. Razack,Dangerous Muslim Men, Imperiled MuslimWomen and Civilized Europeans: Legal and Social Response to Forced Marriages (2008) 12(2) Feminist Legal Studies 129^174. 75 J. Crowley,Politics of Belonging: Some Theoretical Considerations in A. Geddes and A. Favell (eds), The Politics of Belonging: Migrants and Minorities in Contemporary Europe (Aldershot: Ashgate Press, 1999) 30. 76 Decision du Conseil dEtat du 27 Juin 2008 at n 2 above, 642 at http://www.conseil-Etat.fr/cde/fr/base de-jurisprudence/(last visited 18 October 2010). 77 Conclusions de Mme Prada Bordenave, Commissaire du Gouvernement, 4 at http://www.conseilEtat.fr/ce/ jurispd/conclusions/conclusions_286798.pdf (last visited 15 February 2010).
40
Siobhan Mullally
bringing her children to school and undertaking housework, and afternoons visiting her father or father-in-law. She sometimes shopped on her own, but more often, it was noted, went to the supermarket with her husband. Reecting the suspicion of potentially divided allegiances, and the perceived failure of transition, the Commissaire noted that Mme M had maintained des liens tre' s forts (very strong connections) with her culture of origin. In Mme Ms favour, the Commissaire noted that she spoke French, her children attended public school and that she was attended by a male gynaecologist during her pregnancy.78 Contemporary geopolitics and the tensions surrounding the place of the immigrant other in France are evident in the proceedings. In her submission, the Commissaire identies Mme M and her husband as salastes, as members of a group that had links with an extremist imam within the local community. The links appear to have been tenuous at most, and no suggestion was made of any involvement on the part of Mme M or her husband in extremist politics. Nonetheless, this aliation is noted, suggesting its signicance to the overall nding of a failure of assimilation, and the ever present suspicion of divided allegiances. The ruling on Mme M received almost unequivocal support across the political spectrum in France. Fadela Amara, the French Minister for Urban Aairs and former director of Ni Putes, Ni Soumises, referred to Mme Ms niqab, as a prison and a straitjacket.79 Rejecting appeals to liberal values of religious freedom, she argued that the niqab was not a religious symbol, but rather the symbol of a totalitarian political project that promotes inequality between the sexes and lacks democracy. The characterisation of Mme Ms way of life by the Conseil dEtat, and by commentators such as Fadela Amara, stands in marked contrast to Mme Ms own comments, reported in an interview in the NewYork Times. Reecting on her practice of veiling, she notes: It is my choice [. . .] Yes, I am a practicing Muslim, I am orthodox. But is that not my right?80 Mme M did not contest the States commitment to secularism, which she argued, should be applied so as to safeguard her right to religious freedom. The scrutiny and policing of Mme Ms way of life reects the disciplinary and potentially punitive nature of immigration and citizenship laws, and their susceptibility to changing context of the politics of belonging in France and else where in Europe. Previous jurisprudence of the Conseil dEtat had established that the wearing of the religious symbols such as the veil, in itself, even in adherence to religious practice or belief, could not justify the nding of a failure to assimilate.81 The discovery of the veil in the context of immigration debates, and its emergence as a compelling symbol of divided allegiances, however, had
78 ibid. This latter reference, in particular, is strange, suggesting that if Mme M had preferred to be attended by a female gynaecologist, a further failing of assimilation would have been found. It highlights the heightened surveillance of the immigrant woman by the State. 79 F. Amara (2008), interviewed in Le Parisien 16 July 2008. 80 Mme Faiza A, cited in: Veil Closes Frances Door to Citizenship NewYorkTimes 19 July 2008. A 81 2/6 ssr, 3 fevrier 1999, Mme EYau rapport de Mme de Margerie, cited in Conclusions n 77 above, 3. The Conseil dEtat had remained somewhat above the political fray, in debates on the wearing of the veil, repeatedly seeking to limit the impact of new legislative restrictions on religious dress. See for example: Avis du Conseil dEtat 27 November 1989 No 346893, described as aSolomonic judgment. S. Benhabib and others, Another Cosmopolitanism (NewYork and Oxford: BerkeleyTanner lectures, Oxford University Press, 2006) 55^56.
41
signicantly changed the legislative and policy context.82 This change has brought with it a gradual denial of the autonomy or agency of the Muslim woman and increasing constraints on the terms of belonging imposed on immi grant Muslim women in particular. The ndings of the Conseil dEtat in Mme M do not sit easily with its more recent opinion on the limited scope of principles of laicite, equality and dignity. The primacy accorded to individual autonomy in its 25 March 2010 opinion on the legality of proposed restrictions on the wearing of the face-veil, is not reected in its assessment of the test applied to Mme Ms nat uralisation application. In the Mme M case, the Conseil dEtat ultimately relied on a much thicker conception of the good life, and a limited, essentialist view of gender equality, one which found in Mme Ms way of life, an impermissible excess of culture. The Gerin Commissions proposals for expanded integration conditions cannot be removed from the politics, and bio-politics, of a post 9/11 world.Writing in 2004, French philosopher, Alain Badiou, noted that behind the scarfed law, there is fear.83 In the post 9/11 era, transnational border crossings are producing heightened demands to police the borders, of both the imagined community and its very real geographic boundaries.84 Governments and politicians have proven willing to play on these anxieties and fears. As a result, the territorial borders of the state have reappeared as sites of profound national angst and insecurity.85 The politics of risk and security that have come to the fore in post 9/11 Europe, are reinforced by anxieties arising from global movements of peoples, immigration and an expanding European Union. Political leaders have proven themselves willing to yield to such anxieties, and Muslim women have fallen victim to moral panics that have ensued. The Mme M decision was the culmination of a series of legislative and judicial developments in France.86 In 2004, the French legislature introduced a prohibition on the wearing of ostentatious religious symbols in public schools.87 The prohibition followed on from the recommendations of the Stasi Commission, convened by President Chirac in 2003, to examine how the principle of laicite or secularism, could be further strengthened in practice.88 The sole dissenting voice on the Stasi Commission, Jean Bauberot, noted that the impression of a danger Islamiste, had taken root and ourished in the Commission proceedings, leading to the conclusion that the principle of secularism was under threat by an encroaching and menacing Islam.89 Against this background of growing moral panic, the imper82 See: P.Weil, How to be French: Nationality in the Making Since 1789 (Durham, NC: Duke University Press, 2009). 83 See: A. Badiou, Le Monde 22 February 2004. 84 B. Cossman, Sexual Citizens: the Legal and Cultural Regulation of Sex and Belonging (Stanford, CA: Stanford University Press, 2007) 204. 85 ibid. 86 See: P.Weil,Why French La| cite is Liberal (2009) 30(6) Cardozo Law Review 2699. 87 Law No 2004 -228 of 15 March 2004. 88 Commission de Reexion sur Lapplication du Principe de Laicite dans la Republique. Rapport Au President de La Republique at http://lesrapports.ladocumentationfrancaise.fr/BRP/034000725/0000.pdf (last visited 16 October 2010). 89 J. Bauberot, La| cite and the Challenge of Republicanisme (2009) 17 Modern & Contemporary France 189.
42
Siobhan Mullally
iled Muslim woman became a familiar trope. The Stasi Commission recommended a series of reforms, including expanded socio-economic programs to tackle the problems of poverty amongst immigrant communities. It was the proposal for a prohibition on ostentatious religious symbols, however, that was to become the immediate and subsequent focus of Government action.90 In the French context, the thickness of secularisms requirements is not necessarily surprising, given the historical context of tensions between Church and State.While the 1905 law on Church and State was widely viewed as bringing to an end the anti-clerical impulse of late nineteenth century secular movements, this impulse has continued to inuence state responses to religion and religious expressions in the public sphere. Taking the historical context into account, it is important to remember that secularism has not always been viewed as a mechanism through which religious freedom could be secured, but rather as a way of challenging and curtailing the potential inuence of religion in Frances public squares. A concern with non-domination and protection from coercion has been very much to the fore in the States engagement with religious manifestations and has often led to tensions with a more rights-based, procedural interpretation of secularism and religious freedom.91 As such, at its origins there is an anti-religion inuence underpinning at least some readings of la| cite in France, though this is disputed.92 It is now the thicker, more comprehensive conception of secularism that is constraining the negotiation of religions role in the public square.93 This time the religion targeted is Islam, and the historical, migration and colonial contexts have changed signicantly. The introduction of the 2004 law marked a further shift in the meaning of French la| cite, reecting an ongoing preoccupation with national unity and cohesion in the face of immigration and the legacy of a colonial past. The then Prime Minister, Jean Raarin, described the laws objective as seeking to assure the permanence of our values.94 The 2004 Act was followed one year later by the imposition of a state of emergency in Parisian suburbs to respond to rioting amongst predominantly immigrant communities, riots that were sparked by concerns of police brutality and racial proling. The same year, 2005, also saw the enactment of a law which required high-school teachers and textbooks to,acknowledge and recognise in particular the positive role of the French presence abroad, especially in North Africa.95 The law was quickly repealed in 2006, following widespread protests, both nationally and internationally.96 Its enactment, however, in itself,
90 See: P.Weil, n 86 above. 91 For a fuller discussion of these points, see: P. Kahn, n 29 above; E. M. Daly, n 29 above; J. Myard, (ed), La La| cite au Coeur de la Republique (proceedings of colloquium at French National Assembly, 23 May 2003), (Paris: LHarmattan, 2003); E. Poulat, Liberte, La| cite (Paris: Editions du Cerf, 1987); H. Pena-Ruiz, Dieu et Marianne: Philosophie de la La| cite (Paris: PUF, 1999). 92 See P.Weil, n 86 above. 93 See: J. Bauberot Lintegrisme Republicain Contre la La| cite (LaTour d igues, Editions de l ube; 2006) A A 94 Prime Minister Raarin, addressing the Assemblee Nationale, 148th session 3 February 2004. 95 LOI no 2005-158 du 23 fevrier 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Franc ais rapatries at http://www.admi.net/jo/20050224/DEFX0300218L.html (last visited 16 October 2010). 96 A petition, protesting the law gathered more than 1000 signatories from historians. The petition was coordinated by: Ligue des droits de lHomme; Mouvement contre le Racisme et pour l mitie entre les A
43
reects a desire on the part of the State to reinforce a highly controlled narrative of national identity and a failure to reect openly on the legacy of colonialism for colonised peoples and immigrant communities in modern France. The desire to control a specic narrative of national identity reects a broader shift in Europe towards what Christian Joppke and others have characterised as civic reintegration and repressive liberalism.97 Repressive liberalism not only mandates adherence to liberal democratic norms as a modus vivendi between competing conceptions of the good, but requires immigrants to inwardly identify with liberal democratic norms, while deploying the powers of the state to establish and control these identities.98
INDIVISIBILITY, INTEGRATION AND THE COSMOPOLITAN PROMISE OF HUMAN RIGHTS LAW
Frances restrictions on the wearing of the veil have already attracted criticism from UN and regional human rights bodies. Unlike the potential constraints of ECHR law, the criticism of UN human rights bodies has not featured in domestic debates. The proposed expansion of integration conditions in France, to encompass increasing scrutiny of Muslim womens religious practice, is in tension with the cosmopolitan promise of human rights norms, and the presumed universalism that underpins ECHR and international human rights protections. Whether, and to what extent, international and regional human rights bodies will challenge the expansion of integration conditions, or apply the same tests to the migration context, remains to be seen. The republican model of integration has become a dening feature of Frances dialogue with UN human rights treaty bodies. This performative model of integration, which seeks to bolster the universalist ction of French republicanism, has led to reservations to minority and cultural rights provisions, including articles 27 of the International Covenant on Civil and Political Rights99 and article 30 of the Convention on the Rights of the Child.100 France claims these provisions to be inapplicable, because of its constitutional commitments to the indivisibility of the French Republic, secularism and equality before the law. The Human Rights Committee has repeatedly called on France to withdraw its reservation, noting that it is unable to share the view, that the abstract principle of equality before the law, and the prohibition of discrimination, represent sucient guarantees for the,equal and eective enjoyment of minority rights.101 Similarly, the CommitPeuples (MRAP); Syndicat de la magistrature; Association franc aise des anthropologues; Federation de leducation, de la recherche et de la culture CGT (FERC-CGT); Institut Charles-Andre Julien; Association Les amis de Max Marchand, de Mouloud Feraoun et de leurs compagnons; Collectif Ha| ti de France. See: C. Joppke, n 3 above and B. Parekh, A New Politics of Identity: Political Principles for an InterdependentWorld (Basingstoke and NewYork: Palgrave Macmillan, 2008). C. Joppke, n 3 above, 115. The full text of the reservation is available at http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV- 4&chapter=4&lang=en (last visited 18 October 2010). ibid. Concluding Observations of the Human Rights Committee: France UN Doc CCPR/C/FRA/CO/4 31 July 2008 para 11.
97 98 99 100 101
44
Siobhan Mullally
tee on the Rights of the Child has requested the Government to review its position with respect to the rights of minority children, and to consider withdrawing its reservation to article 30.102 More recently, Frances legislative ban on religious symbols has attracted scrutiny and questioning by UN human rights treaty bodies, which have highlighted, in particular, the discriminatory impact of such laws on minority religious and immigrant communities. In its 2004 Concluding Observations on Frances Second Periodic Report, the Committee on the Rights of the Child expressed concern that the Government was neglecting the principle of the best interests of the child and the right of the child to access to education.103 The Committee recommended that the Government should use the enjoyment of childrens rights to assess the eects of the legislation and should consider alternative means to protect the secular character of public schools so as to ensure that children were not excluded or marginalised from the school system.104 In its Concluding Observations adopted in 2009, the Committee again expressed concern at the impact of the 2004 legislation. Though welcoming the steps taken to attenuate the eects of the legislation, including the appointment of a national mediator in the public education system, the Committee endorsed the view, expressed by the Human Rights Committee, one year earlier, that the principle of laicite would not require a prohibition on the wearing of common religious symbols.105 In its Concluding Observations, the Human Rights Committee explicitly stated that France should re-examine the 2004 Act in light, both of the ICCPRs guarantees of equality and religious freedom. The Committee noted that as a consequence of the prohibition, observant Jewish, Muslim, and Sikh students may be excluded from attending school in company with other French children. The Committee further argued that respect for the public culture of laicite would not require forbidding common religious symbols.106 The Committee on the Elimination of Racial Discrimination has also stressed Frances obligation to ensure that the 2004 legislative ban did not have a discriminatory impact on access to education.107 The CEDAW Committee has recommended close monitoring of the 2004 Act and requested that the Government provide data on the educational achievements of minority and immigrant
102 Concluding Observations of the Committee on the Rights of the Child: France UN Doc CRC/C/FRA/ CO/4 11 June 2009 para 101. 103 CRC Committee Concluding Observations: France UN Doc CRC/C/15/Add.240 30 June 2004 paras 25^26. 104 ibid. 105 ibid. References to common religious symbols leave open the possibility that the treaty bodies might nd dierently if the symbols or dress in question were less common, and presumably more threatening to dominant cultural norms, and ways of life. This possibility was explicitly suggested by Human Rights Committee member, RuthWedgewood, in Hudoyberganova v Uzbekistan, in which the Committee found the respondent state to have violated article 18(2) of the ICCPR, by excluding the applicant from attending a state university while wearing the hijab. In an individual opinion,Wedgewood commented that states may be permitted to restrict forms of dress that directly interfere with eective pedagogy and noted that thecovering of a students face would present a dierent set of facts. 106 n 101 above, para 23. 107 Concluding observations of the Committee on the Elimination of Racial Discrimination: France 18/04/2005 UN Doc CERD/C/FRA/CO/16.
45
girls.108 The failure of the Government to provide such data has been part of the ongoing constructive dialogue with France, the collection of such data being viewed by the French Government as recognition of the categories of race and ethnicity.109 Given the treaty bodies concern with the impact of restrictions on religious dress on access to education, it seems likely that proposals for further restrictions on veiling in public spaces would be viewed as in breach of Frances international human rights obligations. In its General Comment on Equality of rights between men and women (No 28), the Human Rights Committee stated that regulation of clothing to be worn by women in public may involve violations of a number of rights guaranteed by the ICCPR, including articles 26,18,19 and 27 (when,the clothing requirements conict with the culture to which the woman can lay a claim.)110 This Comment clearly situates women within the concrete realities of dierences that may arise from religious or cultural aliations. It also highlights an important gender dimension that is often ignored in disputes on the justice or otherwise of multicultural arrangements, that is, womens rights to enjoy their culture or religion in community with others, or as Knop puts it, a womans right to dene her minority self.111 UN Special Rapporteur on Freedom of Religion or Belief, Asma Jehangir, has expressed concern at the stigmatisation of veiled Muslim women in France, and the increasing hostility and discrimination encountered by Muslim women and girls.112 Frances debate on the wearing of the veil has also attracted the attention of the Human Rights Council. In the course of the 2008 Universal Periodic Review, both the Canadian and Bangladeshi representatives called on France to better safeguard religious freedom and to repeal the 2004 Act.113 The French Government responded, noting that the legislative prohibition had now met with abroad con108 CEDAW Committee Concluding Observations: France, Sixth Periodic Report UN Doc CEDAW/C/ FRA/CO/6, paragraphs 21^22. The Committee also expressed concern in relation to Turkeys ban on the Islamic headscarf in schools and universities, and has recommended that the State monitor the impact of the ban, and compile information on the number of women and girls who have been excluded because of its implementation. CEDAW Committee, Concluding Observations:Turkey Combined Fourth and Fifth Periodic Reports, UN Doc A/60/38 part I (2005). 109 For a recent discussion of Frances position on the collection of data relating to ethnicity, see: Le Comite pour la mesure et levaluation de la diversite et des discriminations (Comedd), Final Report (5 February 2010) at http://www.strategie.gouv.fr/article.php3?id_article=977 (last visited 16 October 2010). 110 UN Human Rights Committee, General Comment No 28, Equality of rights between men and women (article 3) CCPR/C/21/Rev.1/Add.10 (2000) para 13 at http:www.unhchr.ch/tbs/doc.nsf/0/ 13b02776122d4838802568b900360e80 (last visited 16 October 2010). 111 K. Knop, Diversity and Self-determination in International Law (Cambridge and New York: Cambridge University Press, 2002) 358. It is this aspect of cultural rights that also informed the Committees ndings in Lovelace v Canada Communication No 24/77, formerly Communication No R.6/24, GAOR 36th session, Supplement No 40, UN Doc A/36/40(1981) 166, a case that goes beyond the sometimes too easy invocation of exit, as the solution to feminism/multiculturalism disputes. In Lovelace the Committee highlighted Lovelaces right to enjoy her culture in community with others, without being subject to discriminatory laws of exclusion, that required her to choose between exit or cultural membership. 112 Report submitted byAsma Jahangir, Special Rapporteur on freedom of religion or belief, Mission to France, (18 to 29 September 2005) UN Doc E/CN.4/2006/5/Add.4, para 67. 113 See: Report of theWorking Group on the Universal Periodic Review: France, UN Doc A/HRC/ 8/47 3 June 2008 para 21 and para 38.
46
Siobhan Mullally
sensus in France, and that the option of home schooling or enrolment in private religious institutions remained for pupils excluded form public schools.114 The Governments response is remarkable in its cursory dismissal of the substantive inequalities that might arise following exclusion from public schooling. Its position in this dialogue stands in marked contrast to the more progressive multiculturalism115 evident in the positions taken by the human rights treaty bodies, where inequalities arising from the intersections of gender, race and migration status have driven the scrutiny of Frances law on religious symbols, and its protection of minority and migrant rights more broadly. Criticism from international human rights bodies has attracted little public commentary in France. However, in recent proposals to expand the prohibition on veiling, the possibility of rebuke from the European Court of Human Rights was repeatedly raised. To date, however, the Court has been markedly deferential to the States appeals to secularism and its assessment of the necessity and proportionality of restrictions on religious freedom. This deference would suggest that the proposed expansion of integration conditions in immigration and citizenship laws may not attract rebuke from the Court, particularly given its traditional caution in matters of immigration law. The 2004 prohibition on ostentatious religious symbols in public schools has been subject to a series of challenges, invoking article 9 of the European Convention on Human Rights.116 In Dogru v France117 the Court upheld a school regulation, which required the removal of headscarves during physical education classes, and resulted in the expulsion of two Muslim students. The Court reiterated its nding in the earlier Leyla Sahin vT urkey case, that in plural democracies, restrictions upon religious manifestations may be necessary, in order to reconcile the interests of the various groups and ensure that everyones beliefs are respected.118 Commenting on the role of the State, in the context of religious dierence, the Court noted that the States duty was that of a neutral and impartial organizer, which disentitles it from assessing the legitimacy of religious beliefs and requises it to ensure mutual tolerance between opposing groups.119 Taking this conclusion, the role of the State is that of ensuring a modus vivendi between people of dierent religious aliations.The Court, however, went further than this, noting
114 Report of the Working Group on the Universal Periodic Review: FRANCE ^ Addendum, Response of France to the recommendations made during the Universal Periodic Review on 14 May 2008, UN Doc A/HRC/8/47/Add.1 25 August 2008, para 75. 115 This term is borrowed from M. Malik, Muslim Legal Norms and the Integration of European Muslims RSCAS 2009/29, EUI Working Paper at http://cadmus.eui.eu/dspace/bitstream/1814/11653/1/ RSCAS%202009_29.pdf (last visited 18 October 2010). 116 On 30 June 2009, a Chamber of the European Court of Human Rights declared inadmissible six applications lodged against France concerning the expulsion of pupils from school for wearing conspicuous symbols of religious aliation: see Aktas v France Application No 43563/08; Gamaleddyn v France Application No 18527/08; Baurak v France Application No 14308/08; Ghazal v France Application No 29134/08; J. Singh v France Application No 25463/08; and R. Singh v France Application No 27561/08. El Morsli v France Application No 15585/06, Decision of 4 March 2008, concerned a refusal to remove a veil so that identity could be veried at a French consulate in Marrakesh. The applicants article 9 complaint was held to be manifestly ill-founded. 117 Dogru v France App 27058/05 [2008] ECHR 1579 (4 December 2008). 118 ibid at [62], citing paragraph 106 of Sahin judgment n 30 above. 119 ibid at [62], citing paragraph 107 of the Sahin judgment.
47
that in the French context, secularism was a constitutional principle,to which the entire population adheres and the protection of which appears to be of prime importance.120 The status of secularism as a founding constitutional principle in France meant that, an attitude which failed to respect that principle, would not be covered byArticle 9s protections.121 Contestation within France on the meaning and import of the constitutional principle of secularism was ignored by the Court. The ndings of the Court in Dogru stand in marked contrast to the scrutiny applied by the UN human rights treaty bodies to the impact of such restrictions on access to education and substantive equality for minority communities in France.122 The concern to safeguard the sphere of public education, and the link to shared values can also be found in the leading UK case on the wearing of the veil, R (Begum) v Head T eacher and Governors of Denbigh High School123 which centred on a schools refusal to allow a student to wear the jilbab. The House of Lords found that no violation of article 9 had occurred, pointing, in particular, to the schools consultation with Muslim communities and the adaptations already made to uniform policy.124 Baroness Hale, while expressing concern at the impact of exclusion on access to education, noted the exceptional position of public schools and of state education; schools, she concluded, are dierent. Noting that young girls from ethnic, cultural or religious minorities, growing up in the UK, faced particularly dicult choices, ultimately, she concluded the question was how to enable the exercise of personal autonomy through the inculcation of liberal values.125 Again, we see here the reiteration of a transition narrative. Belonging to British society requires the casting-o of the illiberal cultural or religious aliations of minority communities. The limited scrutiny and questioning of states is also evident in the Leyla Sahin vT urkey case, in which a majority of 16 to 1 Grand Chamber judges found that a prohibition on the wearing of the headscarf in higher education institutions was a necessary and proportionate response to a pressing social need.126 The single dissenting judge, Franc oise Tulkens, rejected the majoritys reliance on the margin of appreciation doctrine, and criticised the failure of the Court to inquire into the reasons why women themselves wear headscarves, rather than privileging the meanings imposed upon their practices by political Islamists or the Turkish government.127 In her view, the majoritys reasoning abdicated responsibility for the protection of human rights and failed to harmonise the principles of equality, secularism and freedom.128 Tulkens dissenting judgment, in its sensitivity to the
120 ibid at [72]. 121 ibid. 122 The Court refused to assess the severity of the penalty applied to the pupils, noting that it did not wishto substitute its own vision for that of the disciplinary authorities which were best placed to evaluate local needs and conditions ibid at [76].The Court also held that no separate question arose under the right to education (Protocol 1, Article 2), as the circumstances were the same as those arising under Article 9 (freedom of religion). 123 R (Begum) v HeadTeacher and Governors of Denbigh High School [2007] 1 AC 100. 124 ibid at [34]. 125 ibid at [97]. 126 n 30 above, at [122]. See further: F. Tulkens, The European Convention on Human Rights and church-state relations: pluralism vs. pluralism (2008/09) 30(6) Cardozo Law Review 2575. 127 n 30 above, Dissenting opinion of Judge Tulkens at [5]. 128 ibid Dissenting Opinion of Justice Tulkens, at [3].
48
Siobhan Mullally
multiple meanings of religious observance, moves beyond the monolithic categorisation of veiling as threatening to liberal democratic norms. It also points to the priority of individual autonomy as a prerequisite for equality and secularism ^ viewed as a framework within which competing conceptions of the good life can ourish. Tulkens conception of secularism, however, stands in contrast to recent developments on the meaning and scope of secularism in Europe, which have sought to limit manifestations of religious belief in the public sphere, placing, as Habermas notes, a heavy burden on religious citizens. The Sahin case followed on from the widely criticised judgment of the Grand Chamber in the Refah Partisi (Welfare Party) case,129 in which the Court rejected the Sharia in absolutist terms, leading to precisely the outcome that was challenged by the applicants: discrimination between Muslim democrats and Christian democrats. As Boyle commented, the real threat confronting the Court in this case, was an ideology of secularism that was the mirror image of religious fundamentalism.130 That mirror image is the blanket refusal to acknowledge competing conceptions of the good life, compatible with liberal democratic values, whether rooted in the Sharia or not. In the Refah Partisi judgment, Sharia becomes a label for a competing universalism, a totalising illiberal other, with which the Court is reluctant to engage. There is a limit, however, to the restrictions on religious manifestations that the Court will accept, as was evident in the recent case of Ahmet Arslan and others vTurkey.131 There the Court found that Turkey had not demonstrated the necessity of restricting the wearing or display of religious symbols in public spaces and had violated the applicants rights to manifest their religious beliefs by imposing criminal sanctions. In this case, there was no evidence of proselytising, and the display of religious symbols (turbans, batons) had taken place in a public space, without disruption to public order or security. The Court was careful to distinguish its conclusions from previous case-law, which touched on religious symbols in public establishments, where the preservation of the states neutrality required restrictions, in its view, and protection from proselytising was deemed necessary. The challenge to the State in this case, one predicted by the Conseil dEtat and others before the Gerin Commission, may signal the fate of any future general legislative restrictions on veiling in France or elsewhere.While the Court may appear overly deferential to the claims of states vis a vis safeguarding the neutrality of the state, restrictions that apply to spheres of public life that do not directly engage or implicate the state may be a step too far.
INTEGRATION CONDITIONS, SECULARISM AND THE VEIL IN EUROPE
For aspiring Muslim immigrants in Europe, the burden of religious belief and practice in increasingly a heavy one. The prevailing European view of secularism
129 n 50 above. 130 K. Boyle,Human Rights, Religion and Democracy: the Refah Partisi case (2004) 1 Essex Human Rights Review 1, cited in D. McGoldrick n 50 above, 612. 131 Application no 41135/98 date of judgment 23 Feb 2010. See also Lautsi v Italy, Application no. 30814/06, 1 March 2010.
49
as requiring a strict demarcation between the public and the private, does not simply herald a ourishing of religious dierence in the private sphere, it may also bring with it many harsh exclusions. In his viewpoint, published 8 March 2010, Thomas Hammarberg compared proposed prohibitions on the burqua or niqab to criminalisation of the Danish cartoons.132 Each, he argued, entails an impermissible restriction on freedom of expression and both are attacks on the pluralism and respect for dierence at the heart of the European project. Two ECHR protections in particular, were implicated by proposed restrictions: the right to manifest ones religion or belief, and the right to privacy and personal identity. Taking on the discussion of essential values, Hammarberg notes that pluralism and multiculturalism are essential European values, and should remain so.133 It is precisely the pluralism of the public sphere that is at stake in recent debates on veiling, however. As Hammarberg notes, much of the controversy surrounding religion in the public sphere in Europe has centred on Muslims, and on Muslim women, in particular. Debates on veiling in France and elsewhere have raised questions as to the place of religious discourse in the public sphere, and have sought to harden the lines between the public and the private. The private, however, is becoming narrower, as the proposals for expanded restrictions on veiling in public spaces demonstrate. For migrant women, the protections of the private are not available, as the policing and scrutiny of private ways of life is presumed unexceptional. The proposed expansion of integration testing in the Gerin Commissions report will heighten further the scrutiny of Muslim womens religious beliefs, practices and ways of life. The extent to which human rights norms will be applied in the context of immigration and citizenship laws is not yet clear, however. The sovereign privilege traditionally enjoyed on matters of citizenship and immigration, is diminishing.134 With the expansion of rights to non-citizens, such privilege appears increasingly as, a relic from a bygone era of statist supremacy.135 The expansion of rights to non-citizens has been met, however, with increasing eorts by states to limit access to citizenship, or even residence. The coercive powers of the State have been particularly evident in the expanding set of immigration tools that have developed over the last 5^10 years, both at national and European levels. Integration conditions have been attached to both the EU Family Reunication and the Long Term Residence Directives.136 How thin or thick such conditions might be has been left to Member States to determine, allowing considerable discretion to governments in dening the pathways to belonging, not only in the state itself, but ultimately the European Union as a
132 T. Hammarberg,Rulings anywhere that women must wear the burqa should be condemned ^ but banning such dresses here would be wrongsays Commissioner Hammarberg, 8 March 2010, Viewpoint at: http://www.coe.int/t/commissioner/Viewpoints/previous2010_en.asp (last visited 16 October 2010). 133 ibid. 134 See for example, CERD General Recommendation XXX, pt 4. See also: D. S.Weissbrodt, The Human Rights of Non-citizens (Oxford and NewYork: Oxford University Press, 2008). 135 S. Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: John Robert Seeley lectures, Cambridge University Press, 2004) 142. 136 n 16 above.
50
Siobhan Mullally
whole.137 The Stockholm programme has given a renewed impetus to integration as an element of immigration policy.138 Further support is provided by the conclusion of the Lisbon Treaty, which allows for incentives and support to be given to Member States integration initiatives by the European Council and the Parliament.139 Crucially, Member States retain signicant discretion over the integration conditions to be introduced. The veiling controversies in France have taken place against a background of signicant change in immigration law and policy. As Beaujeau notes, the establishment of a new Ministerial post, combining responsibility for Immigration with Integration and National Identity reected a signicant change in thinking about immigration in France.140 The move towards limiting pathways to immigration in France stands in contrast to the diverse trajectories of migrant lives displayed in the Cite de lImmigration (the Museum of Immigration), the establishment of which coincided not just with the appointment of a Minister for Immigration, but also with the controversial debates on DNA testing for family reunication applicants.141 The renewed focus on integration conditions in France has taken a juridical form, in legislative initiatives introducing contracts, Contrat dacceuil et dintegration (CAI) for third country nationals, with stringently policed contractual requirements concerning integration.142 These contracts represent an expansion of integration policy, beyond the process of naturalisation, where requirements of assimilation, albeit relatively thin, were already established. In 2007, the concept of the CAI was extended to include a Contrat dacceuil et dintegration pour la famille (CAIF), with integration conditions (rather than measures)143 relating to the rights and responsibilities of parents and immigrant families. The attachment of such conditions expands further the scrutiny of immigrant families, potentially opening up again questions as to the normativity of immigrant family lives and their conformity to the dominant family
137 See: Common Basic Principles (CBP) for Immigrant Integration Policy in the European Union, adopted by at the Justice and Home Aairs Council Meeting 2618m 14614/04, 19 November 2004; Communication from the Commission to the Council, the European Parliament, the European Economic and Social committee and the Committee of the Regions ^ A Common Agenda for Integration ^ Framework for the Integration of Third-Country Nationals in the European Union (COM/ 2005/0389 nal); Council Conclusions on the Strengthening of Integration Policies in the EU by promoting unity in diversity, adopted at the 2807th Justice and Home Aairs Council Meeting, Luxembourg, 12^13 June 2007. 138 Council of the European Union 2009,The Stockholm Programme ^ An open and secure Europe serving and protecting the citizens Doc 17024/09 Brussels December. See also: E. Collett, 2008 The EU immigration Pact: from Hague to Stockholm, via Paris (Brussels: EPC Policy Brief, 2008) at http://www.epc.eu/TEWN/pdf/304970248_EU%20Immigration%20Pact.pdf (last visited 18 October 2010). 139 T reaty of Lisbon Amending theT reaty on European Union and theT reaty Establishing the European CommunityArticle 63b, OJ C 306 17 December 2007. 140 See M. Beaujeau, n 16 above. 141 ibid, 30^31. 142 n 16 above, discussed in S. Carrera, n 16 above. See also P.Weil, n 82 above. 143 Article 7.2 of the Council Directive on the Right to Family Reunication 2003/86 permits Member States to require third country nationals to comply with integration measures. As Carrera notes, the term measures is distinct from conditions, suggesting that Member States would not be justied in imposing mandatory integration requirements to limit access to EU rights and guarantees provided by the Directive. See S. Carrera, ibid 344^345.
51
forms.144 The introduction of these new juridical forms is part of a Government move to limit what has come to be described asimmigration subie, (literally suered immigration) in favour of immigration choisi. Family reunication, until now being less predictable, less susceptible to controlling limits, has been categorised as coming within the umbrella of immigration subie.The consequences of a failure to comply with the terms of the CAI or CAIF betray the illusion of voluntarism or reciprocity suggested by the language of contract; an application for a residence permit or renewal, or family reunication, may be denied.145 For immigrants already within French territory, the possibility of becoming undocumented and liable to deportation arises. In the Mme M case, the requirement of assimilation for naturalisation took on a specically gender dimension. This gender dimension takes many forms. In a 2008 advisory opinion, HALDE (Haute Autorite de Lutte Contre les Discriminations et Legalite ^ High Authority to Combat Discrimination and Inequality), concluded that exclusion of a woman wearing the niqab from compulsory language instruction, taken in compliance with a CAI, did not violate ECHR protections of religious freedom, non-discrimination or the right to education. The restriction on veiling was justied by the exigencies of good language instruction, the need for student identication and to safeguard the student body from the impact and broader pressures arising from the presence of a veiled woman.146 The Gerin Commission report displays a willingness to expand the gender dimension of integration testing further, to the process of applying for long and even short term residence. These proposals have not been challenged by the Conseil dEtat and have attracted little commentary, raising questions as to the justice of applying such conditions to non-citizens, when such restrictions would be considered, in other circumstances, to be a violation of rights to religious freedom, to privacy or personal identity. The absence of reciprocity here, essential to liberal ideals of justice, is deeply problematic. There is clearly potential for tension and conict between such integration conditions and the more cosmopolitan norms of human rights law. This potential is already evident in the ongoing constructive dialogue between France and UN human rights treaty bodies on minority rights, religious freedom and the practice of veiling, where the additional burdens created for religious communities have been a matter of concern. Beyond the limited circle of immigration theorists, integration testing has not, until recently, attracted much commentary or critique, premised as it was on relatively minimal requirements of civic integration and language competence.Writing in 2004, Joppke commented that populist requirements of assimilation survived because, in polyglot Western Europe, the ties that bind are increasingly procedural and universalistic.147 The mantra,when in Rome, do as the Romans
144 On the dominance of the sexual family form see: M. A. Fineman, The Sexual Family in J. E. Jackson, M. A. Fineman, and A. P. Romero (eds), Feminist and Queer LegalTheory: Intimate Encounters, Uncomfortable Conversations (Farnham: Ashgate, 2009). 145 For a discussion of the integration contract, see D. Kostakopoulou,The Anatomy of Civic Integration (2010) 73 MLR 933.. 146 n 2 above Annexe No 1 Delibrations de la Haute Autorite de Lutte Contre Les Discriminations et Legalite , 634. 147 n 4 above, 255
52
Siobhan Mullally
do, in this context, was not unduly burdensome, he suggested. More recently, however, he has revised this assessment, noting the new assertiveness of liberal states and the emergence of aggressive forms of liberalism evident in the expansion of mandatory civic integration requirements.148 For theorists of migration law and human rights, a key question to be addressed is how or whether this expansion of integration testing is compatible with the cosmopolitan norms of human rights law.149 Much of the history of citizenship law has been dominated by restrictions and exclusions based on such ascriptive characteristics as race, national origin and gender.150 As Benhabib notes, these restrictions were often driven by the imperatives of elites to oer myths of civic identity and foster a sense of peoplehood.151 Katherine Franke writing on the Reconstruction Era in the US, notes that even for progressives of this era, the transition from slave to citizen for Black people, was viewed as something that had to be cultivated.152 Citizenship status, for Republicans, retained both a legal and moral content. African Americans could not enter or transition to the status of citizen on their own terms, but only in accordance with the non-negotiable terms of the dominant culture. Such critiques continue to have relevance today in contemporary Europe. Torn between the claims of an expanding European Union, culturally diverse populations and the extension of rights to non-citizens, states have responded by retreating from multiculturalism, resorting to old practices of nation-building and to closure. Jurgen Habermass prescription for a faltering Europe, and for the strengthening of European citizenship, was to move from ethnos to demos.153 Testing for integration brings with it the possibility of a return to ethnos and to ethnically constrained notions of belonging and membership. Whether or not that danger is realised, depends, of course, on what such testing comprises in, and what the consequences of failure are for aspiring citizens. Soft approaches have been adopted, with voluntary integration or citizenship programmes being put in place.154 States have also adopted mandatory requirements of integration, the consequences of failure being the refusal of citizenship, denial of residence or family reunication.155 The normative justication for raising additional barriers to access to membership or residence is questionable. At a minimum, compliance of such testing with
148 n 98 above. 149 See J. H. Carens,The integration of immigrants (2005) 2 Journal of Moral Philosophy 29, challenging the normative basis for integration conditions. 150 See generally S. Mullally, Citizenship and family life in Ireland: asking the question Who belongs? (2005) 25 Legal Studies 578 and A. Appiah,The Ethics of Identity (Princeton, NJ: Princeton University Press, 2005). 151 S. Benhabib,T ransformations of citizenship : dilemmas of the nation state in the era of globalization: two lectures (Assen: Spinoza lectures, Koninklijke Van Gorcum, 2001) 68. 152 K. M. Franke,Becoming a Citizen: Reconstruction Era Regulation of African American Marriages (1999) 11 YaleJournal of Law and the Humanities 251. 153 J. Habermas, Europe: the Faltering Project (Cambridge and Malden: MAPolity, 2009). 154 See: Communication from the Commission to the Council, the European Parliament, the European Economic and Social committee and the Committee of the Regions, A Common Agenda for Integration ^ Framework for the Integration ofThird-Country Nationals in the European Union COM/2005/ 0389 nal. 155 See: D. Kostakopoulou,Matters of Control: IntegrationTests, Naturalisation Reform and Probationary Citizenship in the United Kingdom (2010) 36(5) Journal of Ethnic and Migration Studies 829.
53
human rights norms would require the absence of any exclusions based on grounds such as race, ethnicity, religion, gender. Requirements to demonstrate allegiance to the State, or integration, have often been viewed as unproblematic, because the statements of British, Dutch, or German values that have emerged from reviews of citizenship practices, have been presumed to be exchangeable, premised on commitments to procedural, universalist norms.156 It is unclear, however, how exchangeable these values are in practice, when such norms are applied through the punitive tools of immigration law to migrant women and others at the intersections of overlapping axes of discrimination, grounded in gender, religion, ethnicity, or class. As the content of such testing becomes thicker, we see, yet again, that the claim to universality that underpins the assertion of such values may not be well founded. Rather, it masks a particularism of religious, cultural, and nationalistic aliations. Kymlicka argues that what distinguishes civic nations from ethnic nations is, not the absence of any cultural component to national identity, but rather the fact that anyone can integrate into the common culture, regardless of race or colour.157 To the extent that integration testing seeks to preserve a national culture, the potential to reinforce a closed, static, view of culture remains, and the possibility for newcomers to participate on an equal basis in the public political culture is limited. Seeking to ensure the permanence of French values for example, through restrictions on veiling, is a refusal to allow immigrants and non-immigrants alike to engage in an ongoing process of democratic iterations ^ limiting the possibility to engage in the dynamic and interpretative process of extending . . . inherited cultures in the altered circumstances to which immigration gives rise.158 It is this limitation that underpins the concerns of UN human rights bodies, when reviewing the restrictions on veiling imposed in France.The protection of religious freedoms, of freedom of expression, privacy and personal identity, are intended to ensure the possibility of such equal participation and to provide a framework within which an ongoing process of democratic iteration can take place. The shift towards mandatory integration conditions limits the two way dimension of accommodations, both formal and informal, that might otherwise accompany immigration and transition to membership for new communities. What then of integration conditions that require demonstrations of commitments to gender equality, as proposed by the Gerin Commission? Where the norm of gender equality is positioned in opposition to religious practice in this way, the overriding primacy of individual autonomy is called into question, as the Conseil dEtat itself notes in commenting on the proposed general restrictions on wearing of the burqua or niqab. As in the Mme M case, we see that these requirements potentially exclude religious Muslim women, further reinforcing the insecurities and inequalities that come when denied membership, residence, or even access to a new community. To require immigrants to comply with such
156 n 4 above, 253. 157 W Kymlicka, Multicultural Citizenship: a LiberalTheory of Minority Rights (Oxford: Oxford Political . Theory, Clarendon Press, 1995) 23^24. 158 S. Scheer,Immigration and the Signicance of Culture (2007) 35 Philosophy & Public Aairs 93, 117.
54
Siobhan Mullally
conditions is therefore to require compliance with a norm already found to be unjust.Where integration conditions are imposed pre-departure, as conditions to granting leave to enter the host state, rights to family life may also be engaged, and the conceptual coherence and justiability of such procedures becomes even more problematic.159 As Iris Young has noted, citizenships claim to universality does not typically apply to everyone, but rather toeveryone the same.160 This is what has been called the equality of the Enlightenment, where recognition and survival depends on meeting the dominant standard and keeping your head low keeps you alive.161 The claim to universal citizenship may hide coercive and repressive norms that are hostile to plural modes of identity and experience.162 In the expansion of integration testing and pathway to citizenship reforms, we see most clearly how citizenship status functions as a strategy of governance. Individuals, aspiring citizens and immigrants, are incited to live as if making a project of themselves.163 Ultimately any failure to succeed is a failure of individual initiative, a failure to take responsibility to complete this project. This modality of governance seeks to stimulate and activate the controlled choices of individuals. How one chooses to dress may or may not fall within these controlling limits.
CONCLUSION
The stigmatisation of Muslim women and girls, through the hyper visibility of the veil in political discourse, is restricting the possibility of more just multicultural arrangements, arrangements that might lessen the burdens of democratic participation on religious citizens. Whether international human rights law heralds the multicultural odyssey that some have predicted is not yet clear.164 It may stand as a bulwark against intolerance, or expansive state claims, and it provides a set of core principles for the protection of minority rights and religious freedoms. International human rights bodies have proven themselves more willing to engage with religious dierences, not to presume a tension between the liberal democratic west and Islam.This engagement has been particularly evident in debates on womens human rights, through the work of the CEDAW Committee and others, where appeals to tradition, religion or custom to justify discriminatory norms or practices have been rejected, but the possibility of internal contestation,
159 See: Kostakopoulou, n 145 above. 160 See I. M.Young,Polity and Group Dierence: A Critique of the Ideal of Universal Citizenship in R. Beiner,Theorizing Citizenship (Albany: SUNYseries in political theory. Contemporary issues, State University of NewYork Press, 1995). 161 C. A. MacKinnon, Are Women Human?: and other International Dialogues (Cambridge, Mass: Belknap Press of Harvard University Press, 2006) 106. 162 L. Bosniak,The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006) 132. 163 N. S. Rose, Inventing our Selves: Psychology, Power, and Personhood (Cambridge and NewYork: Cambridge studies in the history of psychology, Cambridge University Press, 1996) 157. 164 SeeW Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford . and NewYork: Oxford University Press, 2007); A. Xanthaki,Multiculturalism and International Law: Discussing Universal Standards (2010) 32 Human Rights Quarterly 21.
55
dissent and reform is also recognised.165 The UN treaty bodies engagement with France on veiling restrictions reveals a concern with substantive equality and liberal freedoms. As yet, the expansion of integration conditions for migrants in Europe, and the gender dimension of such conditions, has not been tested before international or European human rights bodies. For the Muslim woman, the costs of inclusion in a polity may require the casting o of competing cultural allegiances, the wearing of the veil suggesting a refusal of loyalty to the state and its shared Republican values. The imperative to unveil coming to the fore in recent political discourse on migration, integration and national identity, represents the broader anxieties in laws engagement with the Muslim subject; it is an engagement that is fraught with fear and anxiety. Laws rediscovery of the veil in recent years highlights the constraints within which rights claims continue to operate. The assertion of rights by Muslim women and girls, and legitimate engagement in democratic processes of iteration and reiteration are being undermined. Yet, as the analysis of UN human rights treaty bodies engagement with France suggests, rights discourse may challenge the costs imposed by requirements of inclusion. It may challenge the production of the abject outlaw, the veiled Muslim woman. Challenging this production, however, will require much greater scrutiny and questioning of immigration laws and practices, to expose the seeming inevitability and legitimacy of coercive state practices in this eld.
165 See for example: General Recommendation No 21 (13th session, 1994) Equality in marriage and family relations. S. Mullally, Gender, Culture and Human Rights: Reclaiming Universalism (Oxford and Portland, OR: Human rights law in perspective, Hart, 2006) ch 6.
56

American Law Review

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

American Law Review

Hochgeladen von

Copyright:

Verfügbare Formate

Civic Integration, Migrant Women and the Veil: at the Limits of Rights?

(2011) 74(1) 27^56

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

FRANCE:THE VEIL, SECULARISM AND NATIONAL IDENTITY

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

REDISCOVERING THE VEIL: AN EVOLVING POLITICS OF BELONGING

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

INDIVISIBILITY, INTEGRATION AND THE COSMOPOLITAN PROMISE OF HUMAN RIGHTS LAW

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Civic Integration, Migrant Women and the Veil

Das könnte Ihnen auch gefallen