PROTECTION OF RELIGIOUS CLOTHING

The Protection of the wearing of Religious clothing under the ECHR (Articles 9 and 10)

Abstract

This paper is based on the topic of protection of religious clothing with respect to articles 9 and 10 of the European Convention of Human Rights. The first chapter provides the introduction followed by the literature review in the second chapter. The third chapter covers the methodology. The fourth chapter presents the findings of the cases analysed in this paper. The cases analysed include the French decision to ban headscarf in schools and the Turkey vs. Sahin case study. The dissertation concludes with the fifth chapter.



Table of Contents

Abstract2

Chapter 1: Introduction5

Background of the Study5

Problem Statement7

Purpose of the Study7

Significance of the Study9

Chapter 2: Literature Review10

Overarching Tensions within the ECHR Religious Freedom Jurisprudence10

Conceptual Framework of Religious Rights under International Law14

Protection of Religious Freedom under the ECHR17

Art 9 Limitations from an International Human Right's Perspective20

Religious Freedom and the Human Rights' Perspective (Human Rights' capacity to deal with Religious Rights (Freedom)23

Religious Rights and Human rights - Overarching Themes24

The Muslim Veil26

Bias to individual29

From Respect for Religion to 'Respectful' Religion31

Remedial Tensions v Ideological Tensions in the context of International Human Rights36

Chapter 3: Methodology40

Research Method41

Literature Selection Criteria41

Search Technique41

Keywords Used42

Theoretical Framework42

Chapter 4: Findings and Discussion42

Interference with the Freedom of Religious Expression43

“Prescribed by Law”45

“Legitimate Aim”46

“Necessary in a Democratic Society”50

The Turkish headscarf Case: Sahin v. Turkey54

The Facts of the Case54

Interference with the Freedom of Religious Expression56

“Prescribed by Law”56

“Legitimate Aim”57

“Necessary in a Democratic Society”58

French Headscarf Law Before the European Court of Human Rights61

The Headscarf Affair:61

The Facts of the Case61

Interference with the Freedom of Religious Expression: “Prescribed By Law”64

“Legitimate Aim”65

“Necessary in a Democratic Society”68

Chapter 5: Conclusion74

Introduction74

Summary74

Conclusion75

Future Research79

Endnotes81

Chapter 1: Introduction

Background of the Study

Religious rights' discourse under international law was formed within 'Cold War' dynamics and is frustrated by three distinctive sets of problems reminiscent in the ECHR jurisprudence as well as in the approach of the UN and the OSCE. Firstly on a conceptual level religious rights remain defined along the lines of liberal-communitarian dichotomy and positivist clichés such as subjective v objective, science v religion, liberal v communitarian/conservative and public/private.

While such dichotomies have evolved and showed their inner paradoxes and divisions within the context of legal and political philosophy of the last fifty years, international law and its legal framework addresses the above deeply controversial questions at the level they were discussed in the context of the foundation of the post World War II World order - the old communitarian world and the new free liberal and liberated world.

Secondly on a political level the religious rights' discourse is being articulated within “Cold War” dynamics and a cold war which shaped international community and international law after the World War II as having as their purpose not the repeat the history of the first half of the twentieth century and operate within a tension between good and evil, democracy v dictatorship, freedom v oppression. This Cold War dualism suggested a 'realist', 'game theory' based world view of perpetual tensions, 'international relations' based world view, ...