Bans on Full Face Veils would Violate International
Human Rights Law
Amnesty International, AI Index: POL 30/005/2010
Over the last few
months there has been growing public debate in Europe on the
wearing of full face veils, such as the burqa and the niqab, by
Muslim women. Two countries, Belgium and France, are currently
considering the adoption of legislation that would prohibit the
wearing of full face veils. In Belgium, a draft law currently
passing through Parliament, would prohibit the wearing of full face
veils anywhere in public. In France, a specially constituted
Parliamentary Commission has proposed that individuals be
prohibited from wearing full face veils when accessing public
services.
Amnesty International
believes that such general prohibitions on the wearing of full face
veils would violate the rights to freedom of expression and
religion of those women who choose to wear a full face veil as an
expression of their religious, cultural, political or personal
identity or beliefs. Amnesty International therefore urges states
not to adopt such legislation, and calls on states to take a range
of measures to ensure that all women are able to exercise their
rights free from coercion, harassment and discrimination.
States have an
obligation under international law to respect the human rights of
everyone without discrimination on the basis of race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status; to protect them against
abuses of those rights by third parties, including by private
actors within their families or communities; and to ensure they are
able to exercise those rights in practice.
Under international
human rights law everyone has the rights to freedom of expression
and freedom to manifest their religion or beliefs; these freedoms
extend to the way in which people choose to dress. States must
therefore not impose generally applicable requirements that women
dress or do not dress in a certain way, and they must protect women
from the imposition of such requirements by third parties. It is
wrong for women to be compelled to wear a headscarf or veil, either
by the state or by non-state actors; it is also wrong for women to
be prohibited by law from wearing it.
Under international
human rights law the exercise of the right to freedom of expression
and to manifest one’s religious belief may be subject to certain
restrictions but only where such restrictions meet a stringent
three-part test: they must be prescribed by law; they must address
a specific legitimate purposepermitted by international law; and
must also be demonstrably necessary and proportionate for that
purpose.
The permissible
legitimate purposes are to ensure respect for the rights of others
or to protect certain public interests (national security or public
safety, or public order, health, or morals). Any such restriction
must, in addition, be demonstrably necessary for that purpose – in
other words, as the European Court of Human Rights has said, it
must meet a “pressing social need”; it must be the least intrusive
measure to achieve the intended legitimate objective; and the
specific interference in any particular instance must be
proportionate to that objective. Moreover, such restrictions may
not be imposed for discriminatory purposes or applied in a
discriminatory manner, and must not undermine the right itself.
Both the wearing and the restricting of religious symbols and dress
can impact in many different ways on the exercise of a range of
human rights. This means that assessing the legitimacy of any
restrictions always requires careful consideration on a
case-by-case basis, by reference to demonstrable facts, not
presumptions or speculation.
Amnesty International
does not believe that a generally applicable ban on the wearing of
full face veils in public is necessary or proportionate for any
legitimate objective.
Some clearly defined
restrictions on the wearing of full face veils for the purposes of
public safety will be legitimate. This will be the case, for
instance, for requirements to show one’s face in certain
demonstrably high-risk locations. Similarly, the requirement that
individuals lift their veils when requested to do so for necessary
identity checks will also be legitimate. However, in the absence of
any demonstrable link between the wearing of full face veils and
threats to public safety, general appeals to public safety cannot
be invoked to justify the restriction on the freedom of expression
and religion that a complete ban on the wearing of face veils in
public places would entail.
While the protection
of public morals is a legitimate purpose for imposing restrictions
on freedom of expression or manifestation of religion or belief,
this does not permit restrictions to be imposed on wearing the veil
because a proportion of the population finds it objectionable. The
European Court of Human Rights has reiterated on numerous occasions
that the right to freedom of expression includes forms of
expression "that offend, shock or disturb the state or any section
of the population".
It has been argued
that a general ban on full face veils is necessary to safeguard
gender equality and protect women from being pressured or coerced
into wearing it.States do have an obligation to uphold gender
equality and ensure that all individuals are able to freely
exercise their right to freedom of expression and other human
rights such as the right to work, education and freedom of
movement. States must, therefore, take measures to protect women
from being pressurised or compelled to wear full face veils against
their will.
Where violence or the
threat of violence is employed to compel women to dress in a
certain way, the appropriate response for the state is to intervene
in each individual case through the family or criminal law system.
The state response to this or any other form of pressure should not
be to introduce a generalised ban that indiscriminately affects all
wearers of face veils and denies them access to a host of services
essential to the enjoyment of social and economic rights. Indeed a
general prohibition risks being counter-productive, as a measure
designed to protect women against harassment and oppression may
well result in even greater confinement.
In so far as social
or religious norms which prescribe dress codes are a reflection of
discrimination against women, the state has a positive obligation
to take steps to prevent such discrimination. But such steps should
focus on addressing the discrimination itself and its underlying
causes, not simply its symptoms. And
such steps should not
result in restrictions being imposed on women who are freely
exercising their right to freedom of expression.
Women living in
Muslim communities may face multiple forms of discrimination from
both within and outside their communities, including as women, as
Muslims, and as members of ethnic minorities. To purport to address
discrimination within a community by imposing a measure which is
itself discriminatory compounds this and reinforces the idea that
discrimination can be legitimate. Such a measure is likely to be
ineffective and counterproductive, with women who wear the veil as
a response to family or community pressure becoming in practice
even less able to exercise other human rights such as the right to
work, to education and to freedom of movement. States should
examine how these multiple forms of discrimination by both state
and non-state actors disempower women, and should take effective
steps to address them. This requires developing a range of social
and public policy measures in consultation with the women and
communities concerned. These should include measures to address the
prejudices feeding discrimination on the grounds of gender,
religion, ethnicity and ensuring that the victims of such
discrimination have access to an effective remedy.
Legal and social
norms governing dress codes in a variety of countries and cultures
have common underlying features. They often have a disproportionate
impact on women, whose dress and appearance is subject to
particular regulation because it is seen as the symbolic embodiment
of the religious or cultural values of the community. They can be a
manifestation of underlying discriminatory attitudes and reflect an
underlying desire to control women’s sexuality and bodily autonomy,
objectifying women and their bodies.Whether imposed by the state or
by non-state actors they not only affect the enjoyment by women of
their freedom of expression, but can also impact on their exercise
of other rights, such as the right to work, to education and to
freedom of movement.
Every individual has
the right to express their beliefs or personal convictions or
identity by choosing how they dress.Governments have an obligation
to respect, protect and ensure those rights by creating an
environment in which every woman can make that choice free of
coercion, threats or harassment, without restrictions which are not
necessary or proportionate for a purpose recognized as legitimate
in international human rights law, and without a negative impact on
her exercise of other human rights.