The French headcovering ban: Secularism vs.

Individual freedom
Leonel Eustquio Mendes Lisboa*

Summary
1. 2. 3. 4. 5. 5.1. 5.2. 5.3. 6. 7. 8. 9. Abstract ................................................................................................................................... 1 Resumo ................................................................................................................................... 2 Introduction ............................................................................................................................. 3 Freedom to manifest ones religion under Human Rights Law............................................... 3 Exculpatory clauses................................................................................................................. 8 Necessity: The pressing social need .................................................................................... 9 Public Safety and Order .................................................................................................... 10 Fundamental freedoms of others: Lacit .......................................................................... 10 Meaning of the headcoverings in Islam................................................................................. 13 The Ban ................................................................................................................................. 15 Meaning and consequences of Bans Article 1st................................................................... 17 The clash of secularism and individual freedom ................................................................... 18

1.

Abstract

The objective of this article is to gather information and analyze the legality and lawfulness of article 1st of The French Law 2010-1192 of October 11th, 2010 (Ban) under International Human Rights Law (IHRL). Such Law prohibits the wearing of headcovers that have the purpose or effect of making the identification of the wearer difficult or impossible. This Law causes significant impact over the Muslim population. It is not the Authors intent to give a final answer the question this article brings about but to point to some landmarks on the matter in order to demonstrate the effects and impacts of the Ban. In order to examine the Ban and its article 1st specifically it is necessary to firstly assert what is and what regulates the Human Right to Manifest Ones Religion, secondly examine the possibly applicable exculpatory clauses for a limitations such right.
* Student of Law at Federal University of Minas Gerais (UFMG) Brazil. Membrer of the American Society of International Law. Member of Friends of Jessup.

Moreover, it is necessary to demonstrate, although briefly, the meaning of the wearing of the veil by the Muslim population, what is the meaning and the consequences of the Ban and how it demonstrates the clash of the fundamental principles of individual freedom and secularism or lacit. It is not the goal of this article to address the merits of religious practices and social costumes but to present a legal evaluation of the clash of secularism and the right to individual freedom. Key-words: Human Rights, French Burqa Ban, Secularism, Freedom of Religion.

2.

Resumo

O objetivo deste artigo reunir informao e determinar a legalidade e a juridicidade do artigo 1 da Lei Francesa 2010-1192 de 11 de outubro de 2010 frente ao Direito Internacional dos Direitos Humanos. Tal lei trata da proibio do uso de vestimentas que tenham como objetivo ou efeito ocultar o rosto do usurio ou dificultar a sua identificao. Essa lei tem impacto significativo sobre a populao mulumana por razes culturais. No a pretenso do autor responder de forma definitiva a questo de que trata este artigo, mas apontar referncias na matria a fim de demonstrar os efeitos e impactos da Lei 2010-1192. A fim de tratar daquela lei e daquele artigo em especfico necessrio primeiro determinar o que o Direito Humano da Liberdade de Manifestao Religiosa e que direito o regula, depois tratar de quais as autorizaes juridicamente aceitveis para limitar tal direito. Em seguida faz se necessrio demonstrar, mesmo que forma breve, qual o significado do uso do vu pelos muulmanos, o que o a Lei 2010-1192 e quais as consequncias de sua aplicao e como isso demonstra um choque entre do princpios fundamentais de liberdade e laicidade. No o objetivo deste artigo discutir os mritos de quaisquer manifestaes religiosas e costumes sociais mas apresentar uma avaliao jurdica do choque entre laicidade e liberdade individual.

Palavras-Chave: Direitos Humanos, Lei Francesa de Banimento da Burqa, Secularism, Liberdade Religiosa.

3.

Introduction

In October 11th, 2010 the Law 2010-1192 passed in French Parliament. The Law prescribed the prohibition of the wearing of headscovers while in public, such legal provision entered into force on April 11th, 2011. This law has passed in a moment of serious increase of Arab immigration to French and entered into force in a peak of such movement of massive exodus from Libya and other States agitated the popular revolutions of the, so called, Arabic Spring. The Ban has, up to the time of the writing of this article, resulted in several issuances of fines, arrestments and street and cyber protests. Many Human Rights authorities have spoken for and against the legality and legitimacy of the Ban and they have been outnumbered by the Muslim and Arab authorities and commons who condemned it and even have sworn vengeance against French institutions and authorities. The analysis conducted in this article intends to demonstrate the implication of this outweighing of individual freedom by secularism.

4. Freedom to manifest ones religion under Human Rights Law

It is needed to analyze this fundamental freedom under the European Human Rights Law as well. The text of the European Convention on Human Rights (ECHR) inspired the content and partially the form of the ICCPR. The article that disciplines the freedom to manifest ones religion in the ICCPR (art. 18) is more complex though. Even being simpler, article 9 of the ECHR provides good coverage.
Article 9 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, and to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of

 public order, health or morals, or for the protection of the rights and freedoms of others.

It is noteworthy that belief in this text has a wide meaning: the Article defends not just religion but atheism, agnosticism and positive non-religious beliefs. Cases in the European Court of Human Rights have followed the same interpretation:
As enshrined in Article 9, freedom of thought conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, sceptics and the unconcerned.1 The right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.2 [Belief means] more than just mere opinions or deeply held feelings; there must be a holding of spiritual or philosophical convictions which have an identifiable formal content.3 The term beliefs . . . denotes a certain level of cogency seriousness cohesion and importance.4

On a similar way, the OSCE Office for Democratic Institutions and Human Rights has understood:
The belief aspect typically pertains to deeply held conscientious beliefs that are fundamental about the human condition and the world.

KokkinakisvGreece:(1994)17EHRR397,para31 ManoussakisvGreece:(1996),EHRR387,para47 3 McFeeleyvUK:(1981),3EHRR161 4 CampbellandCosansv.UK:(1982),4EHRR293para36(thiscaserelatedtoArticle2rightto education).

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 Thus, atheism and agnosticism, for example, are generally held to be entitled to the same protection as religious beliefs.5

Moreover, article 9 is protection is reinforced by the text of Article 14 of the European Convention, as follows. By means of this conjugation of articles the rule of law points out to the obligation of States to ensure the right to manifest ones religions despite of the believers religion.
Article 14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

In addition, Article 2 of the First Protocol to the Convention provides that the State should not interfere with parents right to bring up their children according to their own beliefs:
Article 2. No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

This Article does not require the state to subsidise religious education: instead, it requires neutrality - secularism - while guaranteeing the rights of parents in private to give their children a religious or non-religious upbringing without state interference. The effect of the headcovering ban law over article 14s right is massive. The impact is clear on the right of the parents to ensure the education under their own religious convictions, which means, as well, to teach young girls to wear the headcovers. In parallel to that, it is also noteworthy the impact the French ban has over the right of the children to be taught accordingly to their parents believes. Article 14 of the Convention on the Rights of the Child (CRC) brings about the discipline of this matter.

TheOfficeforDemocraticInstitutionsandHumanRights:GuidelinesforReviewtoLegislationPertaining toReligionorBelief(2004)SectionA,Paragraph3
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Article 14. 1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

The other relevant legal instrument is the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), adopted by the General Assembly in 1979. Articles 1s and 3 bring the definition of discrimination and the responsibility of the States to ensure the respect to Human Rights with special attention to the equality of men and women rights.
Article 1. For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 3. States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to en sure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Even though the ban does not address women specifically the limitations it prescribes have a more dramatic effect over women than men. In other words, despite of de iure limitations of fundamental freedoms of women made on basis of sex discrimination the de facto impact is of limitations of fundamental freedoms of women made on basis of sex discrimination. Since States are required to ensure the respect to the fundamental freedoms and avoid means of direct and indirect discrimination, States are not authorized to pass laws that cause this kind of effect. This fundamental freedom and human right has different possible origins and may find shelter in many different bodies of International Law, however the conventional source adopted here is the International Covenant on Civil and Political Rights (ICCPR), due to the its precision, wide acceptance and enforceability and the abundant clarification work available from the Human Rights Council and other bodies. Article 18 of the ICCPR presents and establishes the standards of religious manifestation in IHRL as following:
Article 18 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. 3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. ()6

This fundamental freedom has been disciplined by the Human Rights Council in its Official Commentaries to the articles. Accordingly, the General Commentary 227 the

InternationalCovenantonCivilandPoliticalRights,1966,article18.Authorsunderline. GeneralCommentNo.22:Therighttofreedomofthought,conscienceandreligion(Art.18) CCPR/C/21/Rev.1/Add.4

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freedom of religious manifestation may never be limited by a piece of law that has another goal then the implementation of human rights and only in case of necessity. Necessity, by its turn, was defied as not being an end-less-elastic principle but a measurable concept. In Handyside vs. United Kingdom the European Court of Human Rights (ECtHR) made clear that necessity is not synonymous with indispensable, neither is flexible as expressions like admissible, ordinary, useful, reasonable or desirable. It is connected with the notion of a pressing social need. Moreover, the ECtHR recognizes that it is for the national authorities to make the initial assessment of the reality of such need.8 The Special Rapporteur of the UN Human Rights Council has demonstrated the difference between positive and negative religious manifestation. Positive religious manifestation is the freedom of those who have freely choose to engage in religious observances, practices and worships. Individuals who are prevented from identifying themselves through the display of religious symbols are impaired in their positive freedom of religion. Consequently, preventing individuals of that when not excused by the exceptions of paragraph 3 consists of a violation of human rights. Negative religious manifestation, by its turn, is the freedom of those who do not consider certain type of religious manifestation as essential to their convictions. People who are coerced to identify themselves through the display of religious symbols, including religious dress in public are impaired in their negative freedom of religion. In result of that, and the lack of legal excuse that refers to paragraph 2, in any case a limitation of individual negative freedom of religion is acceptable. Therefore is its the necessary to understand if there is a pressing social need for the enforcement of public order by the means selected by the French government and if these means follow proportionality. Moreover, it must also be asserted whether the wearing of a Muslim headscarf is a positive religious manifestation and if the prescription of doing so is a negative religious manifestation.

5. Exculpatory clauses It is well understood and agreed that states shall make the best efforts in order to enforce the respect for the human rights and fundamental freedoms. However, there are

Handyside vs. United Kingdom, ECtHR(5493/72)

circumstances when some rules must be limited or underenforced but never neglected so as to meet that emergency or extraordinary situation. The right to manifest ones religion can be limited or underenforced only when such limitations as are prescribed by law and are necessary to protect public safety and order, health or morals, or the fundamental rights and freedoms of others. These are general provisions for specific situations of proportionality and balancing of legal principles or conflicting rules. Commonly contradictory rules come to regulate a single situation. In cases like that the rules of interpretation and solution of conflict of rules are applies. However, quite frequently some conflicts of rules cannot easily be solved and they need to be asserted on a case by case bases before a competent authority, which many times is a judicial authority. In order to avoid this kind conflict and its possible consequent problems the Human Rights Instruments (ICCPR, ECHR, CRC, ) provide themselves the answer to those problems: In case of conflict those human rights can be limited in case of necessity to protect public safety and order, health or morals, or the fundamental rights and freedoms of others. Even though some clearer parameters are provided this does not solve the problems but only postpone them. It is then necessary to determine if there is necessity to protect those public features.

5.1. Necessity: The pressing social need The pressing social need is a concept that has been used by the European Court of Human Rights as the basis for assessing whether or not an interference with a qualified right is necessary in a democratic society. It is some sort of necessity that has high social relevance and that must accord with the requirements of a democratic society which involves pluralism, tolerance and broadmindedness.9 Even though some parameters to guide the assessment of whether there is or not pressing social need are offered the concept is steel very wide and quite empty which makes is easy to be manipulated by the political actors. To pile up with that the concepts of the values of public features that need to be protected are vague as well.

Handyside vs. United Kingdom, ECtHR(5493/72)

5.2. Public Safety and Order The concept of public safety or public order are merged and deal with the same vague and hard-to-assert public feature. Because the concept of order varies from place to place, occasion to occasion, people to people and ever person to person it may differ a lot from one State to another and ever in distinct regions of the same State. Considering the core of the idea and the teleology of such concept one attempt to define would be: A State is in public order when the law rules widely and systematically and in public safety when its people and institutions are not submitted significant danger or harm. The wide and systematic rule of law as an indication of public order is the rule of law that does not face insuperable or absolute obstacles to reach out over all the States territory and population. More, it is a state when the public services can be performed regularly without imminent and/or extreme danger and/or harm to those who provide it and those who resort to it. Moreover, it is a state when public and private institutions can function and in consequence fundamental freedoms and human rights have their application maximized. On the other hand the idea of public safety is different from national security which is a matter of existence of a certain state and the threats to it (therefore a matter of public order). Public safety can be defined as a state when people, public and private institutions and property are subjected to excessive harm of violence. Despite of the discussion of whether violence is an inevitable constitutive feature of life in society or even life itself, the state of public safety is not a state of complete and absolute absence of violence and harm but their presence under a reasonable limit. In consequence, only if the wearing of headcovers poses a concrete threat to public order or public safety relevant enough in order to configure a pressing social need this exculpatory clause applies.

5.3. Fundamental freedoms of others: Lacit The concept of fundamental freedom or right of other or others is dynamic and demands a referential, to define it there must be a dichotomy of groups. On the one side there are individuals that that are entitled to a right or fundamental freedom but have it violated by the conduct of a group which is on the other side.

Therefore the group on the other side poses a concrete threat or harm to the group on the one side which are the so-defined as others. It does not matter if the right or freedom is subjective to the individual or the collectivity as a whole or if the group which conduct violates it is constituted by one or more individuals or if has organization or not. According to the teachings of Jacques Robert and Jean Duffar, freedom of religious manifestation libert de culte is derived from the freedom of faith libert de foi which by its turn comes from the freedom of opinion libert dopinion. For the mentioned professors, lacit is the result and, at the same time, one of the requirements for the complete enjoyment of those fundamental freedoms liberts fondamentales.10 The origins of the principle of lacit can be traced back up to the French Revolution in 1789. Before the Revolution, Church and State where very close and interrelated. For many public functions and positions there was no distinction between Religious and Secular authority. The cleric enjoyed high luxury and privileges alongside with the aristocracy. This special treatment they enjoyed was sustained by heavy taxation over the third state bourgeois, workers and peasants which were subjected to disrespect of their fundamental freedoms11. In 1789, by means of the article ten of the Declaration of the Rights of Man and Citizen12, the separation between Church and State happened. Article ten prescribes:
No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the public order established by Law13.

However the separation didnt stand for long. The emperor Napoleon Bonaparte reunited Church and State with the Church of France in the Concordat of 1801, when four churches have been recognized and funded by the government. Roman Catholicism, Lutheran Protestantism, Calvinism and Judaism were, in consequence, influenced and salaried by the Republic which was by its turn influenced by them.

JacquesRobert,Droitsdelhommeelitertsfondamentales,6thed(Paris:EditionsMontchrestien, 1996)at550. 11 Inthiscasefundamentalfreedomsisusedinthesenseoffeaturesderivedoftheindividualdignity lateronunderstoodtobefundamentalrightsandfreedoms. 12 Fromtheoriginal:Dclarationdesdroitsdel'HommeetduCitoyendu1789. 13 Fromtheoriginal:Nulnedoittreinquitpoursesopinions,mmereligieuses,pourvuqueleur manifestationnetroublepaslordrepublictabliparlaLoi.

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It was only in 190514 that the French law on the Separation of the Churches and the State took place and, with articles first and second, finally and definitely established the Lacit.
ARTICLE FIRST - The Republic guarantees freedom of conscience. It guarantees the free exercise of worship, subject only to restrictions imposed below in the interest of public order.15 ART. 2 - The Republic does not recognize, salary or subsidize any religion. ()16

Since then France adopted a tolerant separation17 from the Church. Now it is a core constitutional concept as in article first of French Constitution: France is an indivisible, laic, democratic and social Republic.18 Thus, because the State is independent and separated from religion individuals are assured their right to freely choose their religion and also to chose not to have one, consequently individuals are entitled to the correlate duty of respecting the choices of others. Accordingly, this principle causes individuals to respect the choices of others whether they are to believe or not to as well as the exercise or not of worship and the religious manifestations while the public authorities are prohibited to manifest their religious beliefs on the exercise of their public functions otherwise it would correspond to a violation of lacit. Therefore, it is the State, not the individual, that must not have its rules, actions and values influenced by religion, while individuals may. The second consequence of lacit, as an individual freedom and among the other individual freedoms, is that the State must protect the people and the individuals and remove any obstacle to their freedom being the obstacle a law, a crime, a political tension, an economical scenario or any other.

Fromtheoriginal:Loidu9dcembre1905concernantlasparationdesglisesetdel'tat. Fromtheoriginal:ARTICLEPREMIER.LaRpubliqueassurelalibertdeconscience.Ellegarantitlelibre exercicedescultessouslesseulesrestrictionsdictesciaprsdansl'intrtdel'ordrepublic.Authors underline. 16 Fromtheoriginal:ART.2.LaRpubliquenereconnat,nesalarieninesubventionneaucunculte.() 17 JacquesRobert,Droitsdelhommeelitertsfondamentales,6thed(Paris:Montchrestien,1996)at556. 18 Fromtheoriginal:LaFranceestuneRpubliqueindivisible,laque,dmocratiqueetsociale.

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Moreover, only if the wearing of a headcovering poses a concrete threat to the fundamental right of other, the lacit, as an obstacle to its individual and public enjoyment. The specific right of others that would be threatened by the wearing of religious symbols in public places would the right not to have the public institutions influenced by the individuals who carry them in consequence of their connection to a belief. The other right would be the right not to be influenced on its own personal beliefs by the religious manifestations of others.

6. Meaning of the headcoverings in Islam

The veil Hijab or hijb19 is a wide concept that means much more than a mere headscarf. The practice prescribed by Sharia is what the Ban prohibits in certain measure. Sharia is a ius sanguini body of law that applies to all Muslim and faithful20, despite of where they find themselves. The Sharia has matured from the early beginnings of Islam to the VIII or IX centuries becoming the most important and solid body of law in the Muslim world.21 Fundaments of validity and inspiring values of Sharia reside in the Sacred Sculptures of Islam, the Koran (or Quran) and the Suna (or Sunnah). Thus in order to understand the social/religious significance of a headscarf in Muslim world and its legal meaning it is necessary to look deep in Sharia and touch its primary sources. Al-hijab is a general principle of Sharia with implications to both men and women. It is a duty of modesty and discretion in dressing and behaving, especially in the outdoors. This principle has different interpretations and implications varying from time to time and place to place. In most non-Islamic Arab states, e.g., Turkey and Tunisia, it has evolved in the sense of a moral duty, or heavily recommended religious conduct, of covering all head but the face, sometimes the whole body but hands and face or even the face, for women, not for men.

FromtheArabic: ShariahasspecialfeaturesforbelieversoftheOnlyGod,i.e.,ChristiansandJews,besidesMuslims. However,itistheAuthorsoptionnottodealwithitinthisarticlesinceitwouldescapetheitsscope. 21 HanryJ.SteunerandFilipAlston,InternationalHumanRightsinContext,2nded(Oxford:Oxford UniversityPress,2000)at390.

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In other States, where in general Law and Religion are more merged, the principle of Al-hijab evolved in the sense of instructing women not just to cover most of the body, but hands and face to all body. In some places this duty of discretion also implicates on other kind of limitation to women from the prohibition to talk to strange men, to the prohibition to talk to strangers at all, unless in case of necessity. Al-hijab has no direct connection with the submission of women and men authority over them.22 The Koran, in most of the passages used in Sharia to fundament the religious duty of wearing headscarves, prescribes it in verses related to the Prophets wives and not women in general, but it has been extended to all women by means of analogy. Illustratively, one of the Koran sources of this principle appears in 33:59.
O Prophet! Enjoin your wives, your daughters, and the wives of true believers that they should cast their outer garments over their persons [when abroad]. That is most convenient, that they may be distinguished and not be harassed. (...)

Thus, the hijab is a sign that distinguishes the women under the guardianship of a believer from the others, it casts over those distinguished women the protection of their guardians when outside their homes. And since it is a fact that moral, religious, social and legal duties are hard to be distinguished, especially in Islamic States, and moreover considering that the source of the legal and moral system is the same, it is very difficult not to say impossible to not arbitrarily determine whether the wearing of all and every headscarf consists of a religious manifestation. In any case, of doubt the more favorable to IHRL interpretation should apply. The Sharia as any other body of law is interpreted in its own social, religious, economical and cultural scenario, weighting more some legal devices and principles than other. And in the IX century most cultures used to discriminate and subjugate women. It is the opinion of some progressive Muslim jurists that a switch in the interpretation of the Sharias base texts is fundamental and in inexorable progress. In order to sustain the mentioned it is relevant to examin these Koran citations:

Theprinciplethatdirectlyprescribesthedutyandrightofguardianshipandauthorityoverwomenis theQawama,foundin4:34,whichhasinsomeculturesevolvedtobeafundamentforwomen subjugationanddiscrimination,howeveritisnotwithinthescopeofthisarticle.

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 [2.256] There is no compulsion in religion; truly the right way has become clearly distinct from error () [18.29] And say: The truth is from your Lord, so let him who please believe, and let him who please disbelieve ()

Korans verses 2:256 and 18:29, for instance, bring the principles of religious tolerance and non-compulsion to the observance of the Faith. However those devices and principles have, in many States, been outweighed by intolerance and coercion, phenomena recurrent in every society.

7. The Ban

The scenario of parliamentary discussion and passing of the bill is of a dramatic increase of Arab immigration to France. Moreover, the debates involving school secularism and womens rights to expression were heated and the wearing of such religious symbols or identification signs had been banished from schools. The Socialist legislator, Franois de Rugy, warned that if the law was overturned in the courts, it would be a priceless gift to the fundamentalists we all oppose.23 According to A. D. McKenzie report to Inter Press Service:
"The burqa is not a religious symbol, it is a sign of the subjugation, of the submission of women. I want to say solemnly that it will not be welcome on our territory, Sarkozy said then to a group of lawmakers in a speech at Versailles. Polls have since indicated that 65 percent of the French population, including some Muslims, would like a law banning the burqa. Paradoxically, nearly half of all French citizens say they rarely see anyone wearing a burqa, or the niqab (the variation used here that shows the eyes), according to a poll done by the company GN Research, and published in the French daily Le Parisien.24

ParliamentMovesFranceClosertoaBanonFacialVeils.TheNewYorkTimes.Availableat: http://www.nytimes.com/2010/07/14/world/europe/14burqa.html?ref=muslimveiling. 24 BurqaBanKeepsImmigrationIssueAlive.Inter Press Service, available at: http://ipsnews.net/news.asp?idnews=50142.

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Although the official motivation of the Ban is alleged to be intent to guaranty public order and secularism it has been considered by many25 to be motivated by reasons of public security and even immigration implications. Judith Sunderland, senior researcher for Western Europe at Human Rights Watch affirmed that: "Its a forced integration measure thats bound to fail. Its just the wrong approach. I cant see how a law restricting the wearing of the niqab would help those women who are forced to wear it. It may make them become more secluded and also excluded from French society.26 It is worth to stress that public order is an acceptable excuse of limitation of ICCPR article eighteenths right while secularism would not fit in any of the legal excuses. The Ban statutes the following: Article 1st of the Ban prescribes that No one may, on public spaces, wear clothing [or headgears] designed to conceal the face27. Article 2nd provides the definition of public spaces and enumerates the exceptions of the law, e.g., clothing and gears designed for sports, motorcycle helmets, and other features related to specific jobs. The fundaments of exigency of article first prescribed conduct and punishment in case on noncompliance with, i.e., 150 fine for non-compliance with the order to take the headcovering out, appear on article 3rd. Article 4th brings the sanctions (1 year of imprisonment and / or 30,000 fine) for individuals who coerce others, because of their sex, by means of threat, violence, and imposition, abuse of power or authority to wear headcoverings. The sanctions are double if the coerced person is a minor. Article 5th institutes the six month delay of entry into force of article first. Article 6th describes territorial reach of the ban, i.e., all France and its territories, and article 7th requires the French Government to produce and forward a report to the Parliament with the results and evaluation of the application of the Ban.

VeilBaninFrance.DukeUniversityPressBlog,availableat: http://dukeupress.typepad.com/dukeupresslog/2011/04/veilbaninfrance.html 26 Supranote17. 27 st FrenchLawnumber20101192,2010,article1 ,inoriginal:Nulnepeut,dansl'espacepublic,porter unetenuedestinedissimulersonvisage.Authorstranslationandinsertion.

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The French Law 2010-1192 have been declared, article by article, in conformity with French Law and Constitution by the Conseil Constitutionnel, the highest legal authority in France, on October 7th, 2010, prior to its promulgation.28

8. Meaning and consequences of Bans Article 1st The French Prime Minister Minute of March 2nd, 2011 designed to inform and instruct, inter alia, the Ministries of State, Mayors, Police Chiefs and Health Authorities, in a non-exhaustive list of prohibited clothing, mentioned the full veils voiles intgraux with express mention to the burqa and the niqab.29 Moreover the Prime Minister explains that even the combination of accessories that are not designed to but cause the result of concealing the face, even if not totally, making identification impossible violates the law. It is still mentioned that, under French law, since the result of the violation or article 1st of the Ban is a contravention it is not a concern whether there is or not intention of doing so, the mere fact of the violation is enough to fully characterize it. The most severe impact of the Ban falls upon the women, since they are numerous and a large number of them observe costumes and practices diverse but concomitant with the wearing of the headcovering. Some (or many) of those women are forced to observe such practices and some are submitted to depredating treatment by their family or church members. The impact of the Ban over those specific women is the most destructive. The ones who belong to this portion of the Muslim women population have now, in consequence of the Ban, more restrictions to their lives. The women that are allowed to go on the streets only while wearing the headcover will not be allowed out anymore, losing the rest of their freedom of movement. In other words the Ban article 1st does not enforce the human rights of Muslim women but restrains them. The consequences will be: the women that suffer discrimination and are not entitle to the right to chose whether or not to wear the headcovering and are forced to wear are now forced not to wear. This means that they will either (i) be forced to stay home or (ii) will have chance to appear in public without the covering. For the ones who being under the (iii) coercion or (iv) not used to wear the

DecisiondeLeConseilConstitutionneldu07octobre2010,[2010],2010613DCinRpertoiredes dispositionsdclaresconformeslaConstitution. 29 CirculaireFederalDu2mars2011

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headcovering by choice now have their right of choice removed and cannot express their beliefs and follow a practice that may be for them a sacred duty or a pleasant harmless habit. Four general kinds of impact over the Muslim women population can be expected: (i) the ones who were forced to wear the headcovering to go out of their houses are now forced to stay home; (ii) the ones who were forced to wear the headcovering to go out now have the chance to appear in public without the covering; (iii) the ones that were under the coercion but deeply wanted to wear it are now prohibited to do so; and (iv) the ones that freely and by choice used to wear the headcovering as a religious manifestation, cultural expression or mere piece of clothing are now prohibited to do so. In this speculatory though probable scenario only the women in the situation (ii) have their human rights enforced. Considering that the amount of women in each situation is reasonably alike it is unjustifiable and disproportionate to do so limiting the ones on the situations (i), (iii) and (iv) without the applicability of a exculpatory clause mentioned above. Moreover, it is also not possible to apply the exculpatory clause fundamental rights of other considering the other the ones in (ii) for the same reason.

9. The clash of secularism and individual freedom At the light of all that has been exposed, this clash of secularism and individual freedom there had happened a misguided balance of the two principles. It is not the entire Law 2010-1192 that, despite of the opinion of the Conseil Constitutionnel, seems to violate IHRL and seems to lack of legitimacy for appearing to address one matter (public safety) while addressing another (lacit), however Bans article 1st is the one understood not to be in consonance with IHRL principles of individual freedom and rules of right to manifest ones religion. Provisions such as article 4th have the intent and may have the result of promoting women and girls rights without imposing over them limitations of other rights, if such provision is accompanied by instruments that allow the ones that suffer discrimination and impositions to denounce their tormentors and find freedom. The Author of this article understands that the wearing of the headscarves (not the duty of doing so) is a positive religious manifestation, thus an individual freedom is violated when individuals are deprived of the choice of wearing it or not. In the same

sense the duty of wearing headscarves (not the practice) is a negative religious manifestation and its imposition, by means of coercion, violate such freedom. The limitation of a positive religious manifestation, in all public spaces except for the ones dedicated specially to the religious practices, is understood to be a violation to article 18 of ICCPR, more specifically paragraphs first and third. It takes away the freedom of choice of the individual who freely want to wear the headscarf and prevent those that do not want from changing their minds. The Ban violates IHRL as well as the practice of coercing women to wear the headscarf violates their freedom of choice which takes away their choice of not wearing and prevents those that now want to wear it to change their minds. It is therefore asserted that the Ban is as harmful to the womens human rights as the systematic coercion that obliges them to wear it. By taking out the choice the Ban does not enforce freedom but ratter restrains it.

10. References Jacques Robert, Droits de lhomme e literts fondamentales, 6th ed (Paris: Editions Montchrestien, 1996). Hanry J. Steuner and Filip Alston, International Human Rights in Context, 2nd ed (Oxford: Oxford University Press, 2000). Michael Haas, International Human Rights, 1st ed (Oxford: Routledge, 2008) Vincent Berger, Jurisprudence de la Cour Europenne des Droits de lHomme, 9th ed (Paris: Editions Dalloz, 2004). Mark W. Janis, Richard S. Kay and Anthony W. Bradley, European Human Rights Law Text and Materials, 3rd ed (Oxford: Oxford University Press, 2008). Sir Ian Brownlie and Guy S. Goodwin-Gill, 6th ed (Oxford: Oxford University Press, 2010). Flvia Piovesan, Direitos Humanos e Justia Internacional: Um Estudo Comparativo dos sistemas regionais europeu, interamericano e africano. Ampl. e atual. (So Paulo: Saraiva, 2011). Flvia Piovesan, Direitos Humanos e o Direito Constitucional Internacional. 7 ed. (So Paulo: Saraiva, 2006). The Office for Democratic Institutions and Human Rights: Guidelines for Review to Legislation Pertaining to Religion or Belief (2004).

Decision de Le Conseil Constitutionnel du 07 octobre 2010, [2010], 2010-613 DC in Rpertoire des dispositions dclares conformes la Constitution. Parliament Moves France Closer to a Ban on Facial Veils. The New York Times. http://www.nytimes.com/2010/07/14/world/europe/14burqa.html?ref=muslimveiling Kokkinakis v Greece: (1994) 17 EHRR 397, para 31. Manoussakis v Greece: (1996), EHRR 387, para 47. McFeeley v UK: (1981), 3 EHRR 161. Campbell and Cosans v. UK: (1982), 4 EHRR 293 para 36 (this case related to Article 2 - right to education). Burqa Ban Keeps Immigration Issue Alive. Inter Press Service, available at: http://ipsnews.net/news.asp?idnews=50142. Veil Ban in France. Duke University Press Blog, available at: http://dukeupress.typepad.com/dukeupresslog/2011/04/veil-ban-in-france.html. General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18) CCPR/C/21/Rev.1/Add.4. Dclaration des droits de l'Homme et du Citoyen du 1789, 1789. Loi du 9 dcembre 1905 concernant la sparation des glises et de l'tat, 1905. French Law number 2010-1192, 2010. European Convention on Human Rights, 1950. International Covenant on Civil and Political Rights, 1966. Convention on the Elimination of All Forms of Discrimination against Women, 1979. Convention on the Rights of the Child, 1989. Universal Declaration of Human Rights, 1948. Circulaire Federal Du 2 mars 2011, 2011.