In July 2003, French President Chirac established the so-called Stasi Commission to examine the principle of Laïcité or secularism of the French Republic. The Commission’s report recommended the adoption of a law to regulate educational establishments. In 2004, the French Parliament approved a bill that was signed by President Jacques Chirac, bringing it into effect. The law stated that:
“Application of the Principle of Secularity’ “loi no 2004-228 du 15 mars 2004 encadrant, en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics”.
On 10th February 2004, the lower house voted by a large majority (494 for, 36 against, 31 abstentions) in support of the law. It was then published in the Official Journal of France (Lyon, Dawn, and Debora). The law prevents students from showing any religious affiliations, whether they are Christians, Jews or Muslims in public schools. This prohibition provoked comments and debates in France and across the world, on the validity of domestic law in relation to international human rights. People view it as mainly targeting veiled schoolgirls, where it was referred to as a “French headscarf ban” according to foreign press. In order to analyze this law, we need to examine the historical background of France and its legal framework, which resulted in the adoption of such a law. The main question of this paper is whether the ban falls under domestic law or does it violate France’s international human rights obligations? And how can the veil be considered a threat to this 200- year-old republic.
Before examining this law, it is important to highlight one of the most central principles in France, the “Laïcité”, which means the separation between the state and religion. This idea started in 1905 and continued to be included and deeply practiced under articles 1 and 2 of the French constitution, the Fifth Republic Constitution (IDRISS, M. M)
France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs. It shall be organised on a decentralized basis.
Laïcité protects the core values of the French Republic: liberty, equality and fraternity, through public neutrality, which stops the state from either recognizing or denouncing religion. The debate of the foulard, French for scarf, and Laïcité initially started in 1989, when the headmaster of a junior high school in Creil, a suburb north of Paris, expelled three Muslim girls for wearing the veil in school. The case was referred to the Conseil d’État, and their decision was not only based on the international human right to manifest religious belief, but also on the French State obligations to guarantee the right to education. The Conseil stated that the state’s first responsibility is to protect equal chances for education. It also stated that la liberté de conscience (freedom of conscience) is “one of the fundamental principles recognized by the laws of the Republic, shared equally in the domain of education. It does not conflict with the concept of Laïcité.” The frequency of such cases even dropped from 300 to 150 cases, and the law remained intact until late 2003.
The adoption of Law 2004-228 of March 15, 2004, however, created dramatic changes to policies towards the veil (SAXENA, M.). The Foulard/ Hijab for some people contradicts with the idea of Laïcité, since it represents a specific religion and this naturally opposes some of the republican values such as tolerance and equality.
The Legal Framework:
It is complicated to analyse this topic, due to the intersection between domestic laws under the French constitution and International Human Rights Law. The domestic law in France, as mentioned earlier, is secular and asserts the neutral nature of the state. However, France has acceded without any reservations to the International Covenant on Civil and Political Rights (ICCPR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which recognise under Article 18 and Article 9 respectively the right to manifest religious belief (SAXENA, M.). Additionally, France is bound by the following:
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- Convention on the Elimination of all Forms of Discrimination Against Women, (CEDAW)
- Convention on the Rights of the Child (U.N.-CRC)
- International Convention on the Elimination of all Forms of Racial Discrimination, (CERD)
- Convention against Discrimination in Education, (CADE). (SAXENA, M.)
Under Article 55 of the French Constitution, the norms of international human rights instruments are self-executing, so these Articles are clearly binding on the French government, which means the obligation to respect freedom of expression and religion is also part of the domestic legal system.
The Headscarf Law violates Article 27 of the ICCPR and several other international instruments by infringing on minority religious members’ rights to practice their religion in community with members of their own group (SAXENA, M.).
Article 9 of the ECHR also provides:
“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, to manifest his religion or belief, in worship, teaching, practice and observance. 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.”
Article 2 of Protocol No. 1 to the ECHR concerns a particular aspect of freedom of religion, namely the right of parents to ensure the education of their children in conformity with their own religious convictions:
“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.”
The ECHR clearly establishes the rights of freedom of expression and religious manifestation; however, this is not enough to effectively condemn the French law. The European Court of Human Rights (ECTHR) faced similar cases, such as Karaduman v. Turkey 1993 and Dahlab v. Switzerland 2001. In these two cases, the Court emphasized the special nature of the secular state. The headscarf is, according to the Court, ‘‘a powerful religious symbol’’ and ‘‘hard to square with gender equality’’, therefore, the removal of the headscarf is portrayed as the quid pro quo. In the two aforementioned cases, the Court ruled within the framework of the constitutional and legal order premised on the separation between religion and the state (Lyon, Dawn, and Debora Spini). The French Statsi commission used these specific cases and the Court’s reasoning to justify the 2004 law.
In Cha’are Shalom Ve Tsedek v. France (para. 15 of the Overview of Court’s Case Law on Freedom of Religion) the European Court of Human Rights established the concept of margin of appreciation:
In this sensitive area involving the establishment of relations between the religious communities and the State, the latter in theory enjoys a wide margin of appreciation.
The majority of the French people see the foulard as an exceptional issue, which justifies the use of margin of appreciation. The language of the law is extremely vague and general, leaving more space for debate of whether this is a case of domestic law or does it fall under the umbrella of international human rights law. Others, however, argue that freedom of expression and religion should not be seen as a domestic issue (STEINER, H. J. AND ALSTON, P.). Many international human rights organisations criticised the law, for example, Human Rights Watch stated:
The proposed law is an unwarranted infringement on the right to religious practice. For many Muslims, wearing a headscarf is not only about religious expression, it is about religious obligation.
Similarly, the United States Commission on International Religious Freedom, appointed by the US government, declared in its 2004 report:
In February 2004, the Commission issued a public statement expressing concern over the proposed new law. The Commission expressed particular concern that the proposed restrictions may violate France’s international human rights commitments. The Commission also stated that though increased immigration in France in recent years has created new challenges for the French government, including integration of these immigrants into French society as well as problems of public order, these challenges should be addressed directly, and not by inappropriately limiting the right to freedom of thought, conscience, religion, and belief. The French government’s promotion of its understanding of the principle of secularism should not result in violations of the internationally recognized individual right to freedom of religion or belief.
In the end, global views were arbitrary. International human rights law ensures the freedom of religion and freedom of expression; however, it also respects the nature of the state, and leaves a room for domestic law to rule over sensitive issues. This raises several debatable questions, such as:
- Is this a typical case of margin of appreciation or does it give too much power to the domestic law, violating human rights law?
- Does the general French legislative law leaves room for interpretation for the executive? The word “conspicuous” signs of religions can be interpreted differently. Since the writing of the Napoleonic Code, a principle of French law has been that it must be, in the words of the great legislator Portalis, “general and abstract.” This could be seen as diminishing the value of law in general. Article 34 of the Constitution of France  vests power in Parliament to legislate on the “fundamental principles of teaching”, and it leaves the application of these principles to the executive branch. Parliament may have overstepped the “domain of the law” (domaine de la loi) that is set out by the Constitution only for the sake of pleasing the media and some interest groups.
- If the French law is violating cultural and religious rights, is international law strong enough to grant citizens their rights? If not, is it because of a lack of mechanism or for practical reasons?
70% of the French public supported the adoption of the 2004 law; however, it flamed anger and complete refusal within the growing minority of Muslims in France. Islam is the second most practiced religion in France and Muslims constitute 8% of the population (HOWGART, K.). There were several protests against the application of this law in France and around the world, rejecting the rationale of the French government for the ban. Firstly, the 2004 law was critiqued on the basis of the relativism in the gender and equality.. When the gender issue is raised, it is often to show the distinction between the Western/European woman’ and ‘the other Oriental/migrant woman’. Imperialism had created a standardized image of women, and veiled women become alienated based on their clothing and physical appearance. Centuries ago, the case was totally different, when the Victorian morals dominated; Arabs women were the main attraction for men. The 2004 law mainly targeted the fear of clash of identity and the transformation of “multi-culturalism” into “multi-communitarianism”. This is the fear from the domination of different cultures in France and their involvement in breaking French strong republic to divided communities. The headscarf is proof that Muslims identity can never be integrated within the French identity, explaining that the root of this tension is the clash of civilizations (SCOTT, J. W.)
Secondly, some argue that this law is a form of liberation for the young Muslim women from the oppression of the veil, and its aim was to protect students from “Religious Harassment” (IDRISS, M. M). However, it denies them their right of choice, and obliges them to submit to political and legal autonomy (GERELUK, D.). Even though the law was only applied to school students, it showed the difficulty of stigmatized Muslims in the French society.
Thirdly, one cannot deny the political dimension of the 2004 law. The polarization between the West and East was strengthened after the spread of Islamphobia in Europe, due to the 9/11 terrorist attacks. Some argued that this law was created for Chirac to gain more supporters from the right wing, supporting the Republic against the foulard.
The law banning the foulard was adopted in 2004, which flamed several controversial debates. The nature of Laïcité of the French system complicates the assessment of this issue. Also, international treaties and conventions influence these judgments and raise questions regarding the validity of the margin of appreciation. In my opinion, France’s definition of Laïcité is compatible with the concept of foulard, the freedom of wearing the veil does not contradict the separation of the state and religion, and it does not threaten the identity of France. The idea of foulard does not have a single meaning, and cannot be defined by a court. The 2004 law, in my opinion, is a leap backward from the tolerance and unity of the French Republic, which always promoted the concept of Equality, Liberty and Brotherhood. The question remains will France adjust its definition of Laïcité to adapt multi-culturalism or will the failure of integration result to the minority “Ghetto-izing” and fundamentalists strengthen themselves (GEMIE, S.).