Human Rights Watch welcomes the opportunity to contribute to the work of the Committee as it examines full Muslim veiling in France.  We understand that the Committee's stated goals are to study the origins and evolution of the prevalence of full Muslim veiling in France as well as its practical consequences for society, within the framework of Republican principles, and particularly women's freedom and dignity.  Concern among some members of Parliament and mayors about a perceived increase in the number of Muslim women in France who wear face-covering veils, reflected in the creation of this Committee, has led to calls by a variety of actors, including elected officials, cabinet members, and women's associations for legislation to ban full Muslim veiling in public places in France. We note that a number of individuals and institutions have proposed to this committee alternative measures that are less restrictive than a legislative ban. This submission focuses on the question of whether a ban would comply with international human rights law.

Human Rights Watch is an international human rights organization with offices around the world.  With over thirty years experience, our work documenting abuses in over 80 countries worldwide addresses the full range of human rights.  The organization's Women's Rights Division documents discrimination and violence against women in every region of the world.

We are convinced that legislation banning the wearing of full Muslim veils in public places would violate the fundamental rights to freedom from discrimination, freedom of religion and the right to autonomy.  Such a measure is neither necessary nor proportionate-the two requirements for permissible interference with qualified rights-and would be deeply counterproductive.  

Whether the goal is to promote gender equality, defend secular neutrality of the state (laïcité) or ensure security, or any combination of the three, a legislative ban is an inappropriate and disproportionate response.  There are less restrictive and potentially far more effective alternatives.

National and local authorities should consult with community groups, women's organizations, as well as Muslim associations and religious leaders to develop programs to reach out to women who wear the full Muslim veil.  The best way to uphold the neutrality of public space is for the state to refrain from interference in religious observance.  Sensitive and appropriate measures can be adopted to facilitate identification of women who wear the full-face veil for security or administrative purposes.

A small minority of women in France-the Interior Ministry estimates some 2,000-wear the full veil, and prohibiting its wearing in public would likely harm, rather than help, those who do so under coercion.  The result for these women could be confinement in the home and further isolation and vulnerability.  Policies of forced veiling violate women's fundamental right to personal autonomy, but restrictions on the voluntary wearing of the veil are equally problematic.  Legislating against wearing the full Muslim veil would also send a signal that one cannot be a pious Muslim and a good French citizen, or even that Muslims are not welcome in France.

Freedom from Discrimination

Legislation banning full Muslim veils in public places would constitute restriction of a practice adopted only by women associated with a particular religion with the effect of impairing their enjoyment of fundamental rights.  As such, it would on its face constitute discrimination on the basis of both sex and religion, in violation of the right to freedom from discrimination enshrined in international human rights law. 

Numerous international instruments prohibit discrimination on the grounds of sex and religion.  The International Covenant on Civil and Political Rights (ICCPR) prohibits discrimination and requires States to provide equal and effective protection against discrimination "on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."[1]   The European Convention on Human Rights (ECHR) requires that all the rights and freedoms established in the Convention be secured "without discrimination on any ground such as sex, race, colour...religion, political or other opinion, national or social origin, [and] association with a national minority..."[2] 

Differences of treatment based on otherwise prohibited grounds of discrimination, such as sex and religion, are only permissible under international human rights law if based on reasonable and objective criteria, pursue a legitimate goal, and are proportionate to the aims sought to be realized.[3]  The European Court of Human Rights, while giving states a margin of appreciation, requires "very weighty reasons" for differentiations based on prohibited grounds.[4]

The International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) commits States to eradicate "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..., of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."[5]  As a State Party to CEDAW, France is obligated to refrain from engaging in any practice or act of discrimination against women, and to take steps to eliminate discrimination against women in public life.[6]

The Human Rights Committee has emphasized "that any specific regulation of clothing to be worn by women in public may involve a violation of a number of rights guaranteed by the [ICCPR], such as: article 26, on non-discrimination; ... articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim."[7]

The Human Rights Committee's consciously broad formulation highlights the positive and negative aspects of State responsibilities with respect to ensuring freedom from discrimination and freedom of religion in relation to clothing regulations.  Just as obligations to wear any kind of veil violate these fundamental rights, arbitrary and generalized restrictions on the veil, including full-face covering, breach the State's duty to ensure women's rights to freely express their identity, autonomy, and religious beliefs.

Freedom of Religion

A legislative ban on full Muslim veils in public places would constitute unlawful interference with the right to freedom of religion. 

We are aware of the debate in France about whether full Muslim veiling constitutes a religious practice sanctioned or prescribed by Islam.  It is not the role of Human Rights Watch to enter into a theological debate. 

We note, however that successive special rapporteurs on religion or belief have addressed Muslim veiling as falling within the scope of their mandate. We also note that the Human Rights Committee takes the view that the concept of worship includes the display of symbols, and that observance and practice may include "such customs as...the wearing of distinctive clothing or headcoverings."[8]

The ICCPR and the ECHR guarantee religious freedom, and clarify that the right includes the right to freely manifest one's religious beliefs through worship, observance, practice and teaching.[9]  The European Court has stated clearly that "according to its constant case-law, 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...".[10]

 Moreover, international law protects equally freedom of thought and conscience alongside freedom of religion and belief, including in the ICCPR and ECHR.

Limitations on the right to freedom of religion

Religious freedom is not an absolute right under human rights law. But it may only be subject to limitation by the State where it can convincingly demonstrate that such interference is prescribed by law and necessary in a democratic society to protect public safety, public order, health, or morals, or the fundamental rights and freedoms of others.[11]

Both the Human Rights Committee and the European Court of Human Rights have interpreted the scope for interference with freedom of religion narrowly.  The Human Rights Committee established in its General Comment No. 22 (on article 18 guaranteeing freedom of religion) that any limitations must be "directly related and proportionate to the specific need on which they are predicated," and clarified that restrictions may not be imposed for "discriminatory purposes or applied in a discriminatory manner."[12] 

The European Court of Human Rights has clarified in the context of limitations on free expression that "necessity" implies the existence of a "pressing social need."[13] While States Parties have a certain margin of appreciation in assessing whether such a need exists, the restriction must be construed strictly, in the form of law, and the State must convincingly demonstrate the need for any restrictions.

Thus, for a legislative ban on wearing the full Muslim veil-a clear interference with the right to freely manifest one's religion-to meet the tests of necessity and proportionality, the State would have to demonstrate that the ban pursues one or more legitimate aims, is capable of achieving those aims, and is the measure that imposes the least restrictions on the right to freedom of religion. 

Human Rights Watch is aware of the European Court's jurisprudence on restrictions on the wearing of headscarves and turbans.  The European Court has found the following restrictions to be legitimate within the meaning of article 9: a prohibition in Switzerland on primary teachers wearing the headscarf (Dahlab v. Switzerland); Turkey's ban on students wearing the headscarf in higher education institutions (Leyla Sahin v. Turkey); the 1999 expulsion of two young girls from school in France for refusing to remove their headscarves during physical education class (Dogru v. France and Kervanci v. France); the requirement that a Sikh remove his turban for his driver's license photograph (Mann Singh v. France); and, in a bundle of separately decided cases, the 2004 expulsion of four Muslim girls and two Sikh boys from school in France for refusing to remove their headscarves and turbans, following the entry into force of the Law 2004-228 of 15 March 2004 on religious symbols in public schools (Aktas, Bayrak, Gamaleddyn, Ghazal, Jasvir Singh, Ranjit Singh v. France).[14]

It is our view that the approach of the European Court in these cases has failed to give proper weight to the need for states to have strong justifications for such restrictions; the impact these restrictions have on the lives of the people concerned (including Sikh men and boys in France); and the discriminatory impact of bans that predominately affect women and girls wearing headscarves. 

We would also argue that a total ban on wearing the full Muslim veil in public constitutes an even more far reaching interference with religious freedom than the cases examined by the European Court of Human Rights to date, since it amounts to a state-imposed dress code applicable at all times.

Right to Autonomy and Private Life

The right to a private life is protected both by the ECHR and the ICCPR.[15] The right includes the right to autonomy, which is a core principle of women's rights.[16]  This principle encompasses the right to make decisions freely in accordance with one's values, beliefs, personal circumstances and needs.  Exercise of this right presupposes freedom from coercion as well as freedom from illegitimate restrictions. 

As with the right to religion, a state can only restrict this right if such a restriction is carried out for a legitimate aim, is nondiscriminatory, and the extent and impact of the restriction is strictly proportionate to meeting the aim. It is for the authority to justify its restriction.[17]

Unnecessary and disproportionate

Human Rights Watch is convinced a ban is unnecessary and would be a disproportionate response to the perceived pressing social needs.  The aims cited in support of measures to restrict the wearing of the veil, including a ban in public places, include defense of women's freedom and dignity, defense of secularism (laïcité), and security concerns.  While all three are legitimate goals, a ban is neither the best suited nor the least restrictive measure to achieve them. 

Our analysis is informed by the set of criteria for evaluating-from a human rights perspective-restrictions and prohibitions on wearing religious symbols developed by the UN special rapporteur on freedom of religion or belief.  These criteria include whether "the limitation amounts to the nullification of the individual's freedom to manifest his or her religion or belief...; the restriction is intended to or leads to either overt discrimination or camouflaged differentiation depending on the religion or belief involved...; the restriction is imposed in a discriminatory manner or with a discriminatory purpose, e.g. by arbitrarily targeting certain communities or groups, such as women; [and] no due account is taken of specific features of religions or beliefs, e.g. a religion which prescribes wearing religious dress seems to be more deeply affected by a wholesale ban than a different religion or belief which places no particular emphasis on this issue."[18]

In the view of the special rapporteur, a prohibition on wearing religious symbols that is based on mere speculation or presumption rather than on demonstrable facts should be considered a violation of the individual's religious freedom.[19]

An obligation to wear the veil against one's wishes is an indisputable violation of the right to personal autonomy.  Human Rights Watch has repeatedly criticized policies of forced veiling and other obligations on women's attire.[20]  It is difficult to reconcile the concept of personal autonomy, however, with restrictions on voluntary wearing of the veil.  Legislation to ban full Muslim veiling assumes erroneously that all those who wear it are forced to do so, and would inevitably conflict with the rights of those who make a conscious choice to veil themselves.

The consequences of such legislation on women's lives could be drastic: those who are unwilling or unable to walk in public without a full veil could be confined to their homes.  Those who are forced to veil themselves by male relatives would be even more vulnerable and even less able to seek help.  Dialogue with community associations, investment in outreach programs, and concerted effort to tackle discrimination, lack of access to services and unequal economic opportunities will all do far more to further the cause of women's dignity and autonomy than banning the veil in public places.

The aim of ensuring security appears to have two aspects.  First, a concrete need in a variety of situations to ascertain the identity of an individual.  Airport checks, school pick-ups, and administrative dealings with state offices offer some examples.  A wholesale ban on the full Muslim veil is a disproportionate response to this legitimate need.  Appropriate, sensitive measures can be adopted to satisfy both the individual's right to manifest her religious beliefs and the duty to identify oneself.  In all three situations mentioned above, a woman wearing the full Muslim veil can be taken aside to show her face to a female guard, teacher, or state employee.

Second, the much broader goal of preventing violent extremism in an era dominated by fears of terrorism in the name of Islam.  Addressing violent extremism is a legitimate and important aspect of France's counterterrorism strategy.  Equating conservative religious beliefs with violent radicalism is a mistake, however.  Olivier Roy, the director of the Ecole des Hautes Etudes en Sciences Sociales and specialist in Political Islam, has emphasized that the wearing of full-face veils in France is an expression of pious, apolitical Salafism rather than of radical Islam.[21]

The concept of laïcité has a privileged position in French society and politics.   Irrespective of the value attached by large segments of the population in France to limiting expressions of religiosity in the public sphere, at issue in the present debate is the neutrality of the state in matters relating to religion.  State neutrality requires that state institutions refrain from imposing any particular set of religious views, while at the same time allowing for free expression of religious beliefs within society.  Religious freedom is therefore at the very heart of the notion of a secular state.  A ban that would deny the wearing in public places of a manner of dress linked to particular religious faith would undermine, rather than protect, this principle. 

Counterproductive

Legislation to ban full Muslim veiling in public would be counterproductive.  Rather than help those women who are coerced into wearing the veil, such a ban would limit, if not eliminate, their ability to seek advice and support by restricting their movements.  The movements and opportunities for engagement with their communities and French society as a whole of women who feel their commitment to wearing the veil cannot be compromised would be similarly restricted.  Indeed, the primary impact of legislation of this kind would be to confine, rather than liberate, these women.

A ban would send a message that one cannot be a pious Muslim and a good French citizen.  A small minority of Muslims in France subscribes to Salafism or other conservative interpretations of Islam; according to the French Interior Ministry, only around 2,000 women in France wear the full-face veil.  But many Muslims in France appear to be concerned about legislation that would stigmatize Muslims and Islam itself.  Representatives of the French Council of the Muslim Faith clearly expressed these concerns in their October hearing before this committee.

In grappling with permissible limitations on freedom of expression, association and religion, the European Court of Human Rights has consistently emphasized the importance of pluralism, tolerance and broad-mindedness in a democratic society, and considered that the role of the state is "not to remove the cause of tension by eliminating pluralism, but to ensure that...competing groups tolerate each other."[22]  We urge this Committee to embrace this position and reject proposals for a legislative ban on full Muslim veiling in public places. 


[1] International Covenant on Civil and Political  Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, article 26.  France acceded to the ICCPR on November 4, 1980.

[2] European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 213 U.N.T.S. 222, entered into force September 3, 1953, as amended by Protocols Nos. 3, 5, 8 and 11, which entered into force on September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998, respectively, article 14. 

[3] See Human Rights Committee Decision: S.W.M. Broeks v. The Netherlands, CCPR/C/29/D/172/1984, April 9, 1987, http://www.unhchr.ch/tbs/doc.nsf/0/97131f39bfc0e72ac1256abc00464943?Opendocument (accessed October 16, 2009), para. 13; European Court of Human Rights, Willis v. the United Kingdom, no. 36042/97, 11 June 2002, ECHR 2002-IV, para. 39.

[4] European Court of Human Rights, Willis v. the United Kingdom, para. 39.

[5] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. Res. 34/180, U.N. GAOR Supp. (No. 46) at 193, U.N. Doc A/34/36, entered into force September 3, 1981, art. 1.  France ratified CEDAW on December 14, 1983.

[6] Ibid., art. 2 and art. 7.

[7] 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), http:www.unhchr.ch/tbs/doc.nsf/0/13b02776122d4838802568b900360e80, para. 13.

[8] UN Human Rights Committee General Comment No. 22 on article 18 (Forty-eighth session, 1993), adopted on July 20, 1993, Doc. CCPR/C/21/Rev.1/Add.4, para. 4.

[9] ICCPR, art. 18; ECHR, art. 9.  See also the Universal Declaration of Human Rights, art. 18 and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, article 1.

[10] European Court of Human Rights, Moscow Branch of the Salvation Army v Russia (72881/01), Judgment of 5 October, 2006, para. 92.

[11] ICCPR, art. 18 (3); ECHR, art. 9 (2).

[12] HRC General Comment No. 22, para. 8.

[13] European Court of Human Rights, Sunday Times v. United Kingdom (6538/74), Judgment of 26 April, 1979, Series A, No. 3, available at http://www.echr.coe.int/, para. 59.

[14] European Court of Human Rights, Dahlab v. Switzerland, no. 42393/98, ECHR 2001-V; Leyla Sahin v. Turkey [GC], no. 44774/98, ECHR 2005-...; Dogru v. France, no. 27058/05, December 4, 2008; Kervanci v. France, no. 31645/04, December 4, 2008; and admissibility decisions, June 30, 2009, in the cases of Aktas v. France, no. 43563/08; Bayrak v. France, no. 14308/08; Gamaleddyn v. France, no. 18527/08; Ghazal v. France, no.21934/08;  Jasvir Singh v. France, no. 25463/08; and Ranjit Singh v. France, no. 27561/08.  All available at http://www.echr.coe.int/.

[15] ECHR art. 8; ICCPR art. 17 (in the ICCPR it is a right to "privacy").

[16] See, for example, J. Marshall, "A Right to Personal Autonomy  At the European Court of Human Rights," European Human Rights Law Review, Issue #3, 2008, p. 337.  The importance of personal autonomy to the exercise of women's rights is illustrated by numerous rights established under CEDAW, including  women's right to the same legal capacity as men in civil matters (art. 15),  the right to freedom of movement and the freedom to choose one's residence and domicile (art. 15(4)), as well as equal access to, and freedom from discrimination in, education and employment (articles 10 and 11, respectively).

[17] See, for example, Human Rights Committee General Comment No. 16.

[18] Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, E/CN.4/2006/5, January 9, 2006, Commission on Human Rights, sixty-second session, para. 55.

[19] Ibid., para. 53.

[20] "Gaza: Rescind Religious Dress Code for Girls," Human Rights Watch news release, September 4, 2009; Human Rights Watch, Perpetual Minors: Human Rights Abuses Stemming from Male Guardianship and Sex Segregation in Saudi Arabia, April 2008, https://www.hrw.org/sites/default/files/reports/saudiarabia0408_1.pdf, p. 26; Human Rights Watch, World Report (New York: Human Rights Watch) 2009, 2008, 2007, 2005, 2003 and 2002 editions, Afghanistan chapter, https://www.hrw.org/en/node/79295; https://www.hrw.org/legacy/englishwr2k8/docs/2008/01/31/afghan17600.htm; https://www.hrw.org/legacy/englishwr2k7/docs/2007/01/11/afghan14863.htm; https://www.hrw.org/legacy/english/docs/2005/01/13/afghan9827.htm; https://www.hrw.org/legacy/wr2k3/asia1.html; https://www.hrw.org/legacy/wr2k2/asia1.html; Human Rights Watch World Report (New York: Human Rights Watch) 2007, 2006, 2005 and 2003 editions, Saudi Arabia chapter, https://www.hrw.org/legacy/englishwr2k7/docs/2007/01/11/saudia14717.htm; https://www.hrw.org/legacy/english/docs/2006/01/18/saudia12230.htm; https://www.hrw.org/legacy/english/docs/2005/01/13/saudia9810.htm; https://www.hrw.org/legacy/wr2k3/mideast6.html; Human Rights Watch, Killing you is a Very Easy Thing for US: Human Rights Abuses in Southeast Afghanistan, vol. 15, no. 05(C), July 2003, https://www.hrw.org/en/reports/2003/07/28/killing-you-very-easy-thing-us-0, pp. 84-87; Human Rights Watch World Report 2002 (New York; Human Rights Watch, 2002) Iran chapter, https://www.hrw.org/legacy/wr2k2/mena3.html; Human Rights Watch, World Report 2002 (New York: Human Rights Watch, 2002), Women's Human Rights chapter, https://www.hrw.org/legacy/wr2k2/women.html; Human Rights Watch, We Want to Live as Humans: Repression of Women and Girls in Western Afghanistan, vol. 14, no. 11(C), December 2002, https://www.hrw.org/legacy/reports/2002/afghnwmn1202/, pp. 33-39; "Afghanistan's Women Still Need Our Help," Human Rights Watch news release, December 12, 2002; https://www.hrw.org/en/news/2002/12/12/afghanistans-women-still-need-our-help; Human Rights Watch, Taking Cover: Women in Post-Taliban Afghanistan, May 2002, https://www.hrw.org/legacy/backgrounder/wrd/afghan-women-2k2.pdf, p. 2; "Saudi Arabia: Religious Police Role in School Fire Criticized," Human Rights Watch news release, March 14, 2002, https://www.hrw.org/en/news/2002/03/14/saudi-arabia-religious-police-role-school-fire-criticized; Human Rights Watch, Human Rights in Saudi Arabia: A Deafening Silence, December 2001, https://www.hrw.org/legacy/backgrounder/mena/saudi/saudi.pdf, p. 4; Human Rights Watch, Humanity Denied: Systematic Violations of Women's Rights in Afghanistan, vol. 13, no. 5(c), October 2001, https://www.hrw.org/legacy/reports/2001/afghan3/, pp. 7-8, 13-14; Human Rights Watch, Stifling Dissent: The Human Rights Consequences of Factional Struggle in Iran, vol. 13, no. 4(E), May 2001, https://www.hrw.org/legacy/reports/2001/iran/Iran0501.pdf. p. 3.

[21] See for example, "Porter la burqa est un act assume et volontaire," MetroFrance, http://www.metrofrance.com/infos/porter-la-burqa-est-un-act-assume-et-volontaire/piga!iUpl2pSJet3ywKPlvSfgw/index.xml (accessed October 16, 2009).

[22] European Court of Human Rights, Sahin v. Turkey, para. 107-108; Ouranio Toxo and Others v. Greece, para. 40.  Available at http://www.echr.coe.int/.