Human rights and religion : the Islamic headscarf debate in Europe

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Title:

Personal Author:

McGoldrick, Dominic

Publication Information:

Portland, OR : Hart Publishing, 2006

ISBN:

9781841136523

Subject Term:

Muslim women -- Legal status, laws, etc. -- Europe

Hijab (Islamic clothing) -- Law and legislation

Clothing and dress -- Religious aspects -- Islam

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Library	Item Barcode	Call Number	Material Type	Item Category 1	Status
Searching... PSZ JB	30000010157058	KJC5144.M56 M33 2006	Open Access Book	Book	Searching... Unknown

The debate on multiculturalism and human rights in Europe was reignited in 2004 by the Islamic headscarf ban in France. The legal and political tensions thrown up by this debate are now being witnessed in many European states. The place of religion in schools in general, and wearing of religious dress in State schools in particular, has become an issue across Europe. Supporters of the right to wear the Islamic headscarf argue that the ban and similar prohibitions infringe a number of human rights. This book examines the issues by considering questions of language, meaning and symbolism. In doing so it identifies the debates behind the debates. Detailed consideration is given to the headscarf debate in France. Comparative practice in a number of European states - Germany, Switzerland, Spain, Italy, Belgium, the Netherlands, the United Kingdom and Turkey - is examined. Brief consideration is also given to a number of non-European states. The book also outlines the role and function of an international human rights law approach to the Islamic headscarf. It concludes with some wider reflections on the broader political and cultural struggles that lie behind the Islamic headscarf debate. This wider frame of analysis reveals the deeper significance of the Islamic headscarf bans.

Author Notes

Dominic McGoldrick is Professor of Public International Law and Director of the International and European Law Unit, Liverpool Law School, University of Liverpool.

Acknowledgments	p. vii
Table of Cases	p. xv
Introduction	p. 1
1 Human Rights and Religion: the Challenge of the Islamic Headscarf-Hijab	p. 4
Introduction	p. 4
The Headscarf-Hijab: Language, Meaning and Significance	p. 4
The Headscarf-Hijab as a Religious Obligation?	p. 8
The Real Debates Behind the Debates on the Headscarf-Hijab	p. 12
The Headscarf-Hijab as an Instrument of Oppression of Woman	p. 13
The Headscarf-Hijab as a Political Symbol	p. 17
The Headscarf-Hijab as Evidence of the Failed Integration of Immigrants	p. 17
The Headscarf-Hijab and Terrorism	p. 20
Human Rights Perspectives on the Headscarf-Hijab	p. 22
Religion and Human Rights	p. 24
The Human Right to Freedom of Religion	p. 25
Article 18 of the International Covenant on Civil and Political Rights	p. 26
Article 9 of the European Convention on Human Rights	p. 27
The National Assessment and the margin of Appreciation	p. 28
Parents and Children	p. 30
European Union Standards	p. 30
The Role of Human Rights Thinking	p. 31
2 The Islamic Headscarf Debate in France	p. 34
Introduction	p. 34
The Church and State in France	p. 36
The Law of 1905	p. 36
Laicite and Secularism	p. 38
The French Approach to Rights	p. 41
Assimilation and Integration	p. 44
France and International Human Rights law	p. 46
How France view Muslims	p. 47
Muslims in France	p. 52
The Wearing of the Headscarf-Hijab in France	p. 61
The Headscarf-Hijab Debate in France: l' Affaire du Foulard	p. 64
The 1989 Opinion of the Conseil d' Etat	p. 68
Cases in the Conseil d'Etat	p. 70
The Neutrality of Civil Servants and Teachers	p. 73
The School Context	p. 76
The Headscarf-Hijab in the Private Sector	p. 80
President Chirac's Speech of 16 December 2003	p. 81
The Stasi commission	p. 83
The French Law on Headscarves-Hijab of 2004	p. 90
The Application of the New Law	p. 91
Reactions to the Ban on the Headscarf-Hijab	p. 96
The Law of 2004-Two Years On	p. 100
Concluding Comments	p. 101
3 Comparative State Practice; Germany	p. 107
Introduction	p. 107
The Church and State in Germany	p. 107
The Muslim Community in Germany	p. 109
The Headscarf-Hijab Debate in Germany	p. 110
The Ludin Case	p. 111
The Minority Judgment in Ludin	p. 114
Responses to the Ludin Case	p. 115
Concluding Comments	p. 118
4 Comparative state Practice: Switzerland	p. 120
Church and state in Switzerland	p. 120
Muslims in Switzerland	p. 120
The Dahlab Case	p. 121
The Dehlab Case in the Swiss Federal Court	p. 122
The European Court of Human Rights in Dahlab	p. 129
Concluding Comments	p. 131
5 Comparative state Practice: Turkey	p. 132
Introduction	p. 132
State and Religion in Turkey	p. 132
The Headscarf-Hijab Debate in Turkey	p. 133
Turkish Cases Before the European Commission on Human Rights	p. 137
Leyla Sahin v Turkey the Judgment of the European Court of Human Rights	p. 140
The Assessment of the Grand Chamber on Article 9 European Convention on Human Rights Freedom of Religion	p. 150
The Assessment of the Grand Chamber of Article 2 of Protocol 1: the Right to Education	p. 157
The Assessment of the Grand Chamber on Articles 8 (privacy), 10 (expression) and 14 (non-discrimination)	p. 159
The Dissent of judge Tulkens' in the Grand Chamber	p. 159
The Significance of the Decision in Leyla Sahin v Turkey	p. 167
The Advocacy of Islamic Headscarves-Hijab in Turkish Politics	p. 169
Concluding Comments	p. 171
6 Comparative State Practice United Kingdom	p. 173
Introduction	p. 173
State and Church in the United Kingdom	p. 173
Muslims in the United Kingdom	p. 174
Muslims and School Uniforms in England and Wales	p. 176
The Begum Case in the High Court	p. 180
The Begum Case in the Court of Appeal	p. 184
The Begum Case in the House of Lords	p. 190
Conduding Comments	p. 203
7 Comparative State Proactive Spain, Italy, Belgium the Netherlands, and Other European States	p. 205
Spain	p. 205
Italy	p. 206
Belgium	p. 210
The Netherlands	p. 212
Other European States	p. 214
Concluding Comments	p. 218
8 Comparative State Practice; Non-European States	p. 220
Introduction	p. 220
The United States	p. 220
Uzbekistan	p. 225
Trinidad	p. 230
Afghanistan	p. 232
Singapore	p. 233
Saudi Arabia	p. 233
Iran	p. 234
Concluding Comments	p. 236
9 Applying International Human Rights Standards to the Headscarf-Hijab	p. 237
Introduction	p. 237
Individual Applications to National Courts and International Human Rights Bodies	p. 237
Individual and Group Identities and Rights	p. 241
Negative and Positive Aspects of a Human Rights	p. 244
The Right to Freedom of Religion	p. 246
The Human Rights Context of Church-State Relations Under the ECHR	p. 247
Limitations on religious freedoms on the basis of the æprotection of public order' and the æprotection of the rights and freedoms of others'	p. 250
Religious Discrimination and Islamophobia	p. 252
Religious Discrimination and the European Union	p. 257
Racial Discrimination	p. 259
Gender Discrimination and Feminist Perspectives	p. 261
Autonomy and Consent	p. 270
Minority Rights and Cultural Rights	p. 275
Children's Rights and Parents Rights	p. 276
Teachers Rights and Children's Rights	p. 282
Concluding Comments	p. 286
10 Wider Perspectives on the Headscarf-Hijab	p. 288
Introduction	p. 288
National Identity	p. 288
National Identity and International Human Rights law	p. 289
Changing National Identity	p. 294
Multiculturalism and Islamophobia	p. 298
Secularism Versus Religion	p. 301
Secularism and International Human Rights Law	p. 303
Secularism and Neutrality	p. 304
Liberalism and Religious Education	p. 305
Liberalism and Religious Fundamentalism	p. 306
Concluding Comments	p. 308
Author Index	p. 311
Index	p. 317

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Author Notes

Table of Contents