Master Thesis
International and European Law: Public International Law
University of AmsterdamFaculty of Law
Decisional fragmentation in the jurisprudence of the European Court of
Human Rights and the Human Rights Committee regarding regulation of
religious dress: problematic?
Name V.E.A. (Vera) Naaijkens
Student number 10759921
E-mail veranaaijkens@hotmail.com
Supervisor mw. prof. dr. Y.M. (Yvonne) Donders
Abstract
Decisional fragmentation occurs when two or more judicial bodies render contradictory decisions on (almost) the same legal or factual issue. This thesis analyses this phenomenon, aiming to answer the question to what extent it is problematic, by focussing on the diverging jurisprudence between the European Court of Human Rights (ECtHR) and the Human Rights Committee (HRC) regarding the regulation of religious dress, which may interfere with the freedom to manifest religion. Through a descriptive analysis, the procedural and substantive similarities and differences between the ECtHR and the HRC are studied, leading to the conclusion that in these respects the two bodies differ considerably. Presumably, this is a factor that can lead to decisional fragmentation. Hereafter, the decisional fragmentation between the ECtHR and the HRC in selected jurisprudence about regulation of religious dress is studied. It becomes apparent that by deferring to the State’s margin of appreciation, the ECtHR has permitted restrictions on freedom of religion that are considered to be a violation by the HRC. The ECtHR generally viewed the cases in light of the interests of the State, whereas the HRC mostly decided in favour of the individual. These observations are linked to the procedural and substantive differences observed earlier. Next, the negative and positive implications of the analysed decisional fragmentation are considered through an evaluative analysis. The conclusion of this research is that decisional fragmentation between the ECtHR and the HRC in its jurisprudence regarding regulation of religious dress has some negative implications but is in principle not problematic for the following reasons. There have been relatively few instances in which clear conflicting decisions arose. And in the few instances in which decisional fragmentation did occur, legal certainty and predictability are not necessarily under threat, because the ECtHR and HRC follow different, but in themselves consistent lines of reasoning. This gives individuals the opportunity to get their case heard in the judicial body that is likely to provide the most favourable judgement. Moreover, the phenomenon should be seen as an inherent part of international law: complete uniformity of decisions in international law is impossible, judges are humans and as such products of place and time, and jurisdictions can differ considerably. Lastly, it is argued that decisional fragmentation can foster the development of international law. Trial-and-error is necessary to find the best possible outcome and improve the quality of rulings regarding regulation of religious dress, because it is a complex part of international human rights law.
Table of contents
Chapter 1 – Introduction 4
Chapter 2 – A procedural and substantive comparison between the ECtHR and the
HRC 6
2.1 – The ECtHR and the HRC compared from a procedural point of view ... 6 2.2 – The ECtHR and the HRC compared from a substantive point of view ... 10 2.3 – Sub-conclusion ... 16 Chapter 3 – Decisional fragmentation between the ECtHR and the HRC in their
jurisprudence regarding regulation of religious dress 17
3.1 – Regulation of religious dress in document photos: a comparison between the Shingara Mann Singh cases before the ECtHR and the HRC ... 17 3.2 – Regulation of religious dress in schools: a comparison between the Jasvir Singh, Ranjit Singh and Bikramjit Singh cases ... 19 3.3 – Regulation of religious dress in public: a comparison between the S.A.S., Sonia Yaker and Miriana Hebbadj cases ... 21 3.4 – Sub-conclusion ... 24
Chapter 4 – The implications of decisional fragmentation 25
4.1 – The negative implications of decisional fragmentation ... 25 4.2 – The positive implications of decisional fragmentation ... 28 4.3 – Sub-conclusion ... 30
Chapter 5 – Conclusion 32
Chapter 1 – Introduction
On 26 June 2018 the upper chamber of the Dutch parliament approved a ban on facial coverage in public transport, education institutions, health institutions, and government buildings. While the wording of the prohibition is neutral, it will especially affect women wearing religious facial coverage. Regulation of religious dress is a current and complex issue, as is shown by the fact that international human rights bodies have taken different positions as to under which circumstances religious dress may be restricted by the State. In 2014, the European Court of Human Rights (ECtHR) afforded a wide margin of appreciation to France with regards to the French law prohibiting concealment of the face in public.1 While interfering with the right to manifest religion, the law did not constitute a violation of article 9 European Convention on Human Rights (ECHR) as it was proportionate to the legitimate aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’.2 More recently, the Human Rights Committee (HRC) came to an opposite conclusion in Yaker v. France3 and Hebbadj v. France4: it found that the same French law constituted a violation of the right to freedom of religion.5
When two or more judicial bodies render contradictory decisions on (almost) the same legal or factual issue, this is called decisional fragmentation.6 On the one hand decisional fragmentation is said to strengthen legal and judicial pluralism. On the other hand, it threatens the unity of international law, as well as affects the legal certainty of individuals. In this Master Thesis, I will analyse decisional fragmentation in international human rights law. This particular field of international law is chosen because human rights norms are normally formulated in general wording, which means that the interpretation of these norms plays an important role in their application. Besides, international human rights treaties are normative in nature, through which treaty bodies play an important role in the interpretation of the norms enshrined therein.7 The existence of multiple bodies charged with the interpretation of human rights norms can lead to tensions and contrasting interpretations. Moreover, international human rights law deals with
1 LOI n° 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010. 2 ECtHR, Case of S.A.S. v. France (2014), Application No. 43835/11, par. 155-159.
3 HRC, Communication No. 2747/2016, Sonia Yaker v. France (2018), UN Doc CCPR/C/123/D/2747/2016. 4 HRC, Communication No. 2807/2016, Miriana Hebbadj v. France (2018), UN Doc CCPR/C/123/D/2807/2016.
5 Article 18 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS
171 (hereafter: ICCPR).
6 Webb, International Judicial Integration and Fragmentation, (Oxford University Press, 2013) 6-7 (hereafter: Webb 2013).
7 Vasak, ‘Toward a Specific International Human Rights Law’ in Vasak and Alston (eds), The International Dimensions of Human Rights
the obligations of States towards individuals, from which follows that individual interests are at stake when decisional fragmentation occurs in this field.8
The focus in this Master Thesis will lie on selected jurisprudence of the European Court of Human Rights and the Human Rights Committee. These two human rights bodies were chosen because they form the supervisory bodies that overlook the implementation of the ECHR and the ICCPR respectively, constituting two prominent conventions in the field of international human rights law. Moreover, these treaties broadly cover the same rights from a substantive point of view, and the bodies monitoring them have an overlapping jurisdiction, since all Member States to the ECHR have also ratified the Optional Protocol to the ICCPR.
In this Master Thesis, I will answer the following research question: To what extent is decisional fragmentation in the selected jurisprudence of the ECtHR and the HRC regarding regulation of religious dress problematic? To make this analysis, I will first describe the procedural and substantive similarities and differences between the ECtHR and the HRC, as these factors may play a role in the to be analysed decisional fragmentation. Next, I will study the decisional fragmentation between the ECtHR and the HRC in selected jurisprudence regarding the freedom to manifest religion with similar factual scenarios, focussing on regulation of religious dress specifically. It will be assessed whether the diverging argumentation can be linked to the procedural and substantive similarities and differences between the ECtHR and the HRC found earlier. These analyses both require a doctrinal-positivist research approach. After this I will research what the possible implications of decisional fragmentation are and apply my findings to the analysed decisional fragmentation through an evaluative study. All research will be based on the law, case law, and academic literature.
8 Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran (eds), International Human Rights Law
Chapter 2 – A procedural and substantive comparison between the ECtHR
and the HRC
In this chapter ECtHR and HRC will be compared from a procedural and substantive point of view. This is done because both the distinct roles and mandates of the ECtHR and HRC, as well as the substantive parts of the ECHR and ICCPR are factors that may play a role in decisional fragmentation.
The ECtHR is a regional court that was established with the adoption of the ECHR ‘to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto’.9 The ECtHR receives inter-state cases and individual applications regarding alleged violations of the ECHR by one of the 47 Council of Europe Member States.10
The HRC was established in the ICCPR11 and is a quasi-judicial international committee that monitors the implementation of the ICCPR.12 All State parties are obliged to submit periodical reports to the HRC on how the ICCPR is implemented. The Committee examines each report and addresses its concerns and recommendations to the State party in question in the form of concluding observations.13 The ICCPR also provides for an inter-state complaints procedure.14 Moreover, the Optional Protocol provides for the consideration of individual complaints with regard to alleged violations of the ICCPR by a State party to that Protocol.15 Currently, 169 States worldwide have ratified the ICCPR, of which 116 are parties to the Optional Protocol.16
2.1 – The ECtHR and the HRC compared from a procedural point of view 2.1.1 – The composition of the ECtHR and the HRC
The ECtHR consists of 47 judges, the number of which is equal to that of the State parties to the ECHR.17 They must ‘be of high moral character and possess the qualifications required for
9 Article 19 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3
September 1953) ETS 5 (hereafter: ECHR).
10 Articles 33, 34 ECHR. 11 Article 28 ICCPR.
12 McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Applicability by the Human Rights Committee’ (2016) 65
International and Comparative Law Quarterly 21, 43 (hereafter: McGoldrick 2016).
13 Article 40 ICCPR. 14 Article 41 ICCPR.
15 Article 1 First Optional Protocol to the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force
23 March 1976) 999 UNTS 171 (hereafter: Optional Protocol ICCPR).
16 For up-to-date ratification status see http://indicators.ohchr.org/ (last accessed 25 July 2019). 17 Article 20 ECHR.
appointment to high judicial office’.18 The judges are independent, do not represent their state of nationality, and cannot engage in any activity that is incompatible with their independence and impartiality.19 The Court can sit in four different formations: single judge, Committees of three judges, Chambers of seven judges, and a Grand Chamber of seventeen judges20, the latter being the most authoritative formation of the Court.21 Which formation is chosen depends largely on whether it is admissible, how complex the admissibility decision is, and how complex the merits of the case are.22
The HRC is composed of eighteen members who are nationals of the ICCPR State parties and serve in their personal capacity.23 They must be persons of high moral character and recognized competence in the field of human rights, consideration being given to the participation of some persons having legal experience.24 While not every committee member thus has to be a lawyer, all current members do have a legal background.25 Furthermore, in the election of the Committee, consideration is given to ‘equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems’.26 2.1.2 – The admissibility criteria
The ECtHR may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation of the rights enshrined in the ECHR or one of its Protocols.27 For an application to be considered, the applicant must have suffered a significant disadvantage28 and exhausted all local remedies that are likely to be available and effective.29 This relates to the subsidiary nature of the Convention machinery, in which State parties have the primary responsibility to secure the rights and freedoms defined in the ECHR. Moreover, domestic courts should have the initial opportunity to determine questions regarding the compatibility of domestic law with the Convention.30 Lastly, the Court does not deal with applications that are anonymous or that encompass substantially the same as a matter that has
18 Article 21 ECHR.
19 Article 21(2) and (3) ECHR. 20 Article 26(1) ECHR.
21 De Londras and Dzehtsiarou, Great Debates on the European Convention on Human Rights (Macmillan Publishers Ltd 2018), 16
(hereafter: De Londras and Dzehtsiarou 2018).
22 Articles 27-31 ECHR.
23 Article 28(1), (2) and (3) ICCPR. 24 Article 28(2) ICCPR.
25 Via https://www.ohchr.org/EN/HRBodies/CCPR/Pages/Membership.aspx (last accessed 20 May 2019). 26 Article 31(1) and (2) ICCPR.
27 Article 34 ECHR. 28 Article 35(3) ECHR.
29 Article 35(1) ECHR; ECtHR, Case of Salah v. the Netherlands, Application No. 8196/02, par. 50. 30 ECtHR, Case of A, B, and C v. Ireland (2010), Application No. 25579/05, par. 142.
already been examined by the Court or has already been submitted to another procedure of international investigation and contains no relevant new information.31 For example, it is impossible to let your case be heard when it has already been examined by the HRC.
The HRC has the competence to consider communications from individuals who claim to be victims of a violation by a State that is party to the Optional Protocol.32 This individual complaints procedure before the HRC is optional for ICCPR State parties, in contrast to the individual complaints procedure before the ECtHR, which is compulsory for all ECHR State parties. To submit a communication to the HRC, the individual must have exhausted all available domestic remedies.33 The communications may not be anonymous, considered to be an abuse of the right of submission or incompatible with the provisions of the ICCPR.34 Also, the Committee does not consider any communication unless it has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.35 While simultaneous application is thus not possible, subsequent application is, even when the matter has previously been examined by for example the ECtHR. In practice however, the Committee of Ministers of the Council of Europe has recommended reservations on this point to prevent an ‘appeal’ possibility beyond the ECtHR36, and many Member States have acted accordingly.37 But even if such a reservation is made, the possibility of appeal is not excluded when a case was examined by a single judge formation of the ECtHR and the HRC is of the opinion that the examination did not include sufficient consideration of the merits.38 2.1.3 – The procedures before the ECtHR and the HRC
Any individual application under the ECHR is submitted in writing and must contain all the information requested by the ECtHR.39 Where a case is clearly inadmissible based on the material submitted, it is assigned to a single judge formation.40 Where such a decision is not taken, the single judge forwards the application to a Committee or Chamber for further examination.41 All formations may declare an application inadmissible at any stage of the
31 Article 35(2) ECHR.
32 Article 1 Optional Protocol ICCPR. 33 Article 2 Optional Protocol ICCPR. 34 Article 3 Optional Protocol ICCPR. 35 Article 5(2) Optional Protocol ICCPR.
36 Committee of Ministers, Resolution 70(17) (15 May 1970).
37 For up-to-date reservations to the Optional Protocol ICCPR see
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-5&chapter=4&clang= (last accessed 12 June 2019).
38 HRC, Communication No. 1945/2010, María Cruz Achabal Puertas v. Spain (2013), UN Doc CCPR/C/107/D/1945/2010, par. 7.3. 39 Rules 45(1), 47(1) Rules of Court (2018) (hereafter: Rules of Court).
40 Rule 49(1) Rules of Court.
proceedings.42 A Chamber may relinquish jurisdiction in favour of the Grand Chamber or a case may be referred to it at a more advanced stage in the proceedings, when the case raises a serious question about the interpretation of the Convention.43 The Chamber may decide to hold a hearing, either at the request of a party or of its own motion,44 which are public unless the Chamber decides otherwise in exceptional circumstances.45
While a case before the ECtHR provides for written and oral procedure, the procedure of communications under the Optional Protocol to the ICCPR is fully written. The procedure starts with a decision by the HRC on whether the communication brought to its attention should be registered.46 After this decision is taken, the State concerned is requested to submit a written reply about the admissibility of the communication and its merits within six months.47 The HRC will examine the communication in the light of all written information made available to it by the individual and the State party concerned during a closed meeting.48
2.1.4 – The legal status of the decisions of the ECtHR and the HRC
The effectiveness of treaty monitoring mechanisms is closely linked to the impact its findings have in domestic legal orders49, which in turn is related to their legal bindingness.
The views of the HRC are formally only recommendations and therefore do not create legally binding obligations.50 The terminology view was specifically chosen to indicate that the decisions are ‘advisory rather than obligatory in character’.51 However, they do follow a judicial pattern52 and are regarded as authoritative interpretations of the ICCPR.53 Moreover, the HRC itself has indicated that it perceives its views as judicial, since ‘they are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the
42 Rules 53(1), 54(1) Rules of Court. 43 Article 30 ECHR.
44 Rule 59(3) Rules of Court. 45 Rule 63(1) Rules of Court.
46 Rule 92(1) Rules of procedure of the Human Rights Committee (2019), UN Doc CCPR/C/3/Rev.11 (hereafter: Rules of procedure HRC). 47 Article 4 Optional Protocol ICCPR; Rule 92(2) and (5) Rules of procedure HRC.
48 Article 5(1) and (3) Optional Protocol ICCPR.
49 Heyns and Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer Law International 2002), 1
(hereafter Heyns and Viljoen 2002).
50 Tomuschat, Human Rights. Between Idealism and Realism (Oxford University Press 2006), 220.
51 Buergental, ‘The UN Human Rights Committee’ in Frowein and Wolfrum (eds), Max Planck Yearbook of United Nations Law (Kluwer
Law International 2001), 397.
52 Scheinin, 'The Human Rights Committee's Pronouncements on the Right to an Effective Remedy - An Illustration of the Legal Nature of
the Committee's Work under the Optional Protocol' in Ando (ed) Towards Implementing Universal Human Rights: Festschrift for the
Twenty-Fifth Anniversary of the Human Rights Committee (Martinus Nijhoff Publishers 2004), 104.
53 HRC, General Comment No. 33: The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and
decisions’.54 Furthermore, the determination that there has been a violation of the ICCPR requires action by the State party, namely written explanations or statements clarifying the matter and the remedy that may have been taken by that State55, on the basis of the right to an effective remedy.56 As to effectiveness, compliance with the views of the HRC is disappointing, since very few States give due effect to its decisions57: the compliance rate was slightly above 12 percent based on 2009 data.58
While the views of the HRC are not legally binding, the judgements of the ECtHR are: article 46 ECHR affirms that State parties must abide by the final judgement of the Court in any case to which they are party. The execution of these judgements is monitored by the Committee of Ministers.59 On the one hand, it could be argued that the status of the judgements of the ECtHR formally does not differ significantly from that of the HRC’s views, because the judgements of the ECtHR are in principle only binding on the parties to a dispute60, and thus do not have erga
omnes effect.61 On the other hand, decisions of the Court do have a powerful influence on developing an autonomous and determinative interpretation of the ECHR62, and there arguably exists an obligation to abide by judgements issued with respect to third States.63 Despite the fact that ECtHR judgements are legally binding, non-compliance with judgements of the ECtHR remains problematic in practice: this year it became clear that while the total number is decreasing, 6151 ECtHR judgements remain unenforced.64
2.2 – The ECtHR and the HRC compared from a substantive point of view 2.2.1 – The interpretation of the ECHR and the ICCPR
The general rules on treaty interpretation, which are recognized as customary international law65, are laid down in the Vienna Convention on the Law of Treaties (VCLT). According to the VCLT, treaties must be interpreted ‘in good faith in accordance with the ordinary meaning
54 HRC General Comment No. 33, par. 11. 55 Article 4(2) Optional Protocol ICCPR. 56 HRC General Comment No. 33, par. 14.
57 McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights
(Clarendon Press 1994), 202; Heyns and Viljoen 2002, 6.
58 Open Society Justice Initiative, From Judgment to Justice: Implementing International and Regional Human Rights Decisions (Open
Society Foundations 2010), 119.
59 Article 46 ECHR.
60 Alebeek and Nollkaemper, ‘The Legal Status of Decisions by Human Rights Treaty Bodies in National Law’ in H. Keller and G. Ulfstein
(eds), UN Human Rights Treaty Bodies, Law and Legitimacy (Cambridge University Press, 2012) 2012, 407.
61 De Londras and Dzehtsiarou 2018, 186. 62 Ibid.
63 Bodnar, ‘Res Interpretata: Legal Effect of the European Court of Human Rights’ Judgements for other States Than Those Which Were
Party to the Proceedings’ in Haeck and Brems (eds), Human Rights and Civil Liberties in the 21st Century (Springer 2014), 224.
64 Council of Europe, Supervision of the Execution of Judgements and Decisions of the European Court of Human Rights 2018: 12th Annual
Report of the Committee of Ministers (April 2019), 57.
to be given to the terms of the treaty in their context and in the light of its object and purpose’.66 Treaty interpretation is thus a matter of weighing various interpretative principles67, between which no hierarchy exists.68
The ECtHR has recognized that the interpretation of the ECHR should be guided by the VCLT69, and different approaches corresponding to those rules can be found in the ECtHR’s jurisprudence.70 These include relying on the preparatory works71, textual interpretation72, and reading the Convention in light of its object and purpose73 and other general principles of law74. The ECtHR also takes into account any relevant rule or principle of international law that is applicable between the parties of the case concerned75, but interprets the content of the Convention autonomously, meaning independent of the content of equivalent concepts in domestic law.76 Furthermore, the Court has emphasized that the Convention ‘should so far as possible be interpreted in harmony with other rules of international law of which it forms part’77 and ‘cannot be interpreted in a vacuum’.78 The fact that the ECtHR cannot ignore the relevance of other international organisations and treaties is obvious since parties to the ECHR have become members of other treaties as well79, but it is also required under the VCLT.80 Indeed, it would make sense to interpret the ECHR in harmony with for instance the ICCPR, since all State parties to the ECHR have also ratified the ICCPR and its Optional Protocol.81 The ECtHR has also referenced that in interpreting the ECHR regard must be given to its ‘special character as a treaty for the collective enforcement of human rights and fundamental freedoms’.82 This speciality doctrine is based on four interpretative principles: the principle of
66 Article 31(1), Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331
(hereafter: VCLT).
67 Christoffersen, ‘Impact on General Principles of Treaty Interpretation’ in Kamminga and Scheinin (eds), The Impact of Human Rights Law
on General International Law (Oxford University Press, 2009), 40 (hereafter: Christoffersen 2009).
68 Schlütter, ‘Aspects of Human Rights Interpretation by the UN Treaty Bodies’ in Keller and Ulfstein (eds), UN Human Rights Treaty
Bodies, Law and Legitimacy (Cambridge University Press, 2012), 274 (hereafter: Schlütter 2012).
69 ECtHR, Case of Golder v. United Kingdom (1975), Application No. 4451/70, par. 29. 70 Christoffersen 2009, 41.
71 ECtHR, Case of Lawless v. Ireland (No. 3) (1961), Application No. 332/57, par. 14. 72 Ibid.
73 ECtHR, Case of Delcourt v. Belgium (1970), Application No. 2689/65, par. 15. 74 Ibid, par. 35.
75 ECtHR, Case of Demir and Baykara v. Turkey (2008), Application No. 34503/97, par. 67 and 76.
76 Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (Oxford University Press 2015), 202. 77 ECtHR, Case of Fogarty v. United Kingdom (2001), Application No. 37112/97, par. 35.
78 ECtHR, Case of Al-Adsani v. the United Kingdom (2001), Application no. 35763/97, par. 55.
79 Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21 The European Journal of International Law 509,
521.
80 Article 31(3c) VCLT.
81 Buyse, ‘Tacit Citing - The Scarcity of Judicial Dialogue between the Global and the Regional Human Rights Mechanisms in Freedom of
Expression Cases’ in McGonagle and Donders (eds), The United Nations and Freedom of Expression and Information: Critical Perspectives (Cambridge University Press, 2015) 2 (hereafter: Buyse 2015).
effectiveness, the notion of law-making treaties, the objective nature of States’ obligations, and the doctrine of dynamic or evolutive interpretation.83 The principle of effectiveness entails that the ECHR is intended to guarantee ‘not rights that are theoretical or illusory but rights that are practical and effective’.84 The notion of ‘law-making treaties’ was first made in Wemhoff v.
Germany85 and later in Loizidou v. Italy.86 It implies that human rights treaties are normative in nature, in contrast to ‘contract-treaties’. Through this, treaty bodies play an important role in the interpretation of the norms enshrined in human rights treaties.87 Moreover, this implies an ‘objective nature of States’ obligations’, meaning that human rights treaties contain obligations that protect the fundamental rights of individuals rather than the interests of contracting States, even though individuals are not party to these treaties.88 Lastly, the doctrine of dynamic interpretation relates to the well-known phrase that the Court adopted in Tyrer v. United Kingdom, in which it had to decide whether judicial corporal punishment of minors amounted to degrading punishment under article 3 ECHR. The Court noted that ‘the Convention is a living instrument which … must be interpreted in the light of present-day conditions’.89 A breach of article 3 was found, influenced by developments in other Member States where judicial corporal punishment had already been abolished.90
In interpreting the ICCPR, the rules of literal and contextual interpretation are usually the starting points for the HRC, with or without particular reference to article 31 VCLT.91 The HRC frequently refers to literal interpretation alone, although not consistently92: in two separate cases the HRC referred to the ‘ordinary meaning’ of article 14 ICCPR but used this in two different manners.93 Sometimes the HRC combines the literal interpretation with the contextual method of interpretation. This happened in Judge v. Canada, a case that addressed the issue of whether a State which had abolished the death penalty violated article 6 ICCPR by extraditing a person to a country that had not abolished it. The HRC interpreted article 6 ICCPR both literally and
83 Christoffersen 2009, 42. The first reference to the special character of human rights treaties was made by the International Court of Justice
in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) (1951), par. 23.
84 ECtHR, Case of Airey v. Ireland (1979), Application No. 6289/73, par. 24. 85 ECtHR, Case of Wemhoff v. Germany (1968), Application No. 2122/64, par. 8.
86 ECtHR, Case of Loizidou v. Italy (Preliminary Objections) (1995), Application No. 15318/89, par. 84.
87 Vasak, ‘Toward a Specific International Human Rights Law’ in Vasak and Alston (eds), The International Dimensions of Human Rights
(Greenwood Press Westport 1982), 674-675 (hereafter: Vasak 1982).
88 Orakhelashvili, ‘Restrictive Interpretation of Human Rights Treaties in the Recent Jurisprudence of the European Court of Human Rights’
(2003) 14 European Journal of International Law 529, 531 and 533; Mégret 2018, 88-89; Vasak 1982, 67.
89 ECtHR, Case of Tyrer v. the United Kingdom (1978), Application no. 5856/72, par. 31. 90 Ibid., par. 14, 35.
91 Schlütter 2012, 277. 92 Schlütter 2012, 274.
93 Compare HRC, Communication No. 1209, 1231/2003 and 1241/2004, Sharifova, Safarov and Burkhonov v. Tajikistan (2008), UN Doc
CCPR/C/92/D/1209, 1231/2003 and 1241/2004, par. 6.4 with HRC, Communication No. 1562/2007, Kibale v. Canada (2008), UN Doc CCPR/C/93/D/1562/2007, par. 6.5.
contextually to stress a new understanding of the right to life.94 Another method of interpretation often referred to by the HRC is the interpretation of the ICCPR in light of its object and purpose. It does so by drawing from its own General Comments and/or the travaux préparatoires of the ICCPR.95 Lastly, the principle of good faith is referred to by the HRC in several cases, for example in the context of adherence of State parties to interim measures in the case of Ahani v. Canada.96
The HRC thus generally follows the methods of interpretation laid down in the VCLT. Apart from that, it also uses special methods of interpretation. Firstly, the HRC has emphasized the need for an autonomous interpretation of the ICCPR, meaning that it must be independent from notions contained in national laws.97 The principle of dynamic interpretation has also been accepted by the HRC. In Judge v. Canada, the Committee held that the ICCPR should be interpreted as a ‘living instrument’ and that the rights protected under it should be applied in the light of present-day conditions.98 The HRC has moreover referred to the objective nature of State party obligations under the ICCPR, by explaining that it comprises no inter-state obligations, but rather obligations that safeguard the rights of individuals.99 A method that is somewhat underdeveloped in the HRC’s jurisprudence is systemic interpretation, which is widely used by the ECtHR as was shown in the previous section. While the HRC refers to other international instruments in order to interpret the ICCPR, it refrains from referencing regional human rights instruments like the ECHR.100 This is not surprising due to the fact that the ICCPR is a global treaty and the ECHR a regional one.101 A reference by the HRC to the ECtHR could fuel criticism that the HRC is Western or Eurocentric in approach rather than universal.102 2.2.2 – The margin of appreciation and level of scrutiny
In applying the ECHR, the ECtHR has developed the margin of appreciation doctrine under which national governments are given some discretion as to the manner in which they implement ECHR rights,103 because in certain circumstances States are better accommodated to
94 HRC, Communication No. 829/1998, Judge v. Canada (2002), UN Doc CCPR/C/78/D/829/1998, par. 10.4 (hereafter: HRC Judge v.
Canada).
95 HRC, Communication No. 265/1987, Vuolanne v. Finland (1989), UN Doc A/44/40, par. 9.3-9.4.
96 HRC, Communication No. 1051/2002, Ahani v. Canada (2004), UN Doc CCPR/C/80/D/1051/2002, par. 8.2.
97 HRC, Communication No. 50/1979, Gordon C. Van Duzen v. Canada (1982), UN Doc CCPR/C/15/D/50/1979, par. 10.2. 98 HRC Judge v. Canada, par. 10.3.
99 HRC, General Comment No. 24: Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional
Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant (1994), UN Doc CCPR/C/21/Rev.1/Add.6, par. 17.
100 Schlütter 2012, 299-301. 101 Buyse 2015, 4.
102 Ibid, 15; McGoldrick 2016, 53.
103 Parker, ‘The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR’ (2006) 17 Duke
judge local conditions and public interests that compete with the interest of the individual in the case at hand.104 The doctrine accommodates diversity and national sovereignty, while also enforcing effective implementation of the rights enshrined in the ECHR. Affording a margin of appreciation to States reflects that States have the primary responsibility to secure the rights and freedoms defined in the ECHR105, relates to the democratic legitimacy States have in contrast to the ECtHR, and is necessary to make the interference with the sovereignty of democratic States tolerable and politically acceptable.106
The level of discretion afforded to States depends on several factors. First of all, it is influenced by the content of the right at issue: the more fundamental the right, the more specifically the limitation must be tailored to the aim pursued and the more the means chosen must be proportional to the legitimate aim.107 In the Manoussakis case, the Court stated that restrictions on religious freedom in particular ‘call for very strict scrutiny’.108 Secondly, the width of the margin of appreciation is dependent on the level of European consensus. This is an interpretative method that relies on comparative analysis of the law and practice of the contracting parties to the ECHR.109 Cases of the ECtHR reveal a wide margin of appreciation when the issue at hand involves the protection of morals for which no clear consensus has emerged. This was first noted in the case of Handyside, in which the Court found a lack of European consensus on issues of public morality and thus gave the United Kingdom a wide margin of appreciation concerning its decision to ban a sexually explicit children education book.110 Conversely, despite the recognized national margin of appreciation in the area of morality, the Court found European consensus through an increased understanding and tolerance of homosexual behaviour in the Dudgeon case and therefore afforded a much narrower margin of appreciation to the United Kingdom in said case.111
While a reference to the margin of appreciation doctrine was made during the drafting of the ICCPR in 1963112, the HRC does not make use of it.113 However, the HRC does determine the
104 Donoho, ‘Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal
Human Rights’ (2001) 15 Emory International Law Review 391, 452 (hereafter: Donoho 2001).
105 See articles 1 and 13 ECHR; Preamble of Protocol 15 to the ECHR (currently not in force yet); ECtHR, Case of S.A.S. v. France,
Application no. 43835/11, par. 129.
106 McGoldrick 2016, 31, 35, 43. 107 Donoho 2001, 451-455.
108 ECtHR, Case of Manoussakis and others v. Greece (1996), Application no. 18748/91, par. 44. 109 De Londras and Dzehtsiarou 2018, 79.
110 ECtHR, Case of Handyside v. United Kingdom (1976), Application no. 5493/72, par 48. 111 ECtHR, Case of Dudgeon v. United Kingdom (1981), Application no. 7525/76, par. 60.
112 Draft International Covenants on Human Rights: report of the 3rd committee (10 December 1963), UN Doc A/5655, par. 49. 113 McGoldrick 2016, 41-42.
level of scrutiny to be applied. In the Hudoyberganova case, for example, it was dependent on the proportionality to the purpose being sought. In this case the Court was also willing to take into account the context in assessing the alleged violation of article 18 ICCPR.114 While this does not constitute a margin of appreciation, it is certainly similar, since the width of the margin of appreciation determines the strictness of the scrutiny applied as well.115 Furthermore, there are a few cases in which the HRC afforded weight to the practice of States. For instance, the Committee departed from its earlier case law in Judge v. Canada by interpreting article 6 differently due to ‘a broadening international consensus in favour of abolishing the death penalty, and in States which have retained the death penalty a broadening consensus not to carry it out’.116 Important to note here is that the HRC provided no factual assessment of the change in the practice of States. The only actual practice referred to was that of Canada, a party to the case. Another case wherein the HRC took note of the practice of States was Yoon and Choi v. Republic of Korea concerning the right to conscientious objection. In this case the HRC assessed that other State parties had introduced alternatives for compulsory military service, whereby it was possible for the Republic of Korea to conceive such alternatives too.117
2.2.3 – The freedom to manifest religion in the ECHR and the ICCPR
Article 9 of the ECHR and article 18 of the ICCPR both declare that everyone shall have the right to freedom of thought, conscience, and religion. The articles also state that this freedom is inviolable and subject to none of the possible limitations to which the manifestation of religion is subject. Both article 9(2) ECHR and article 18(3) ICCPR distinguish the freedom of religion from the freedom to manifest one’s religion. Under the ECHR this freedom protects acts that are ‘intimately linked’ to religious belief such as acts of worship or devotion which are aspects of the practice of a religion or belief in a generally recognised form.118 The freedom to manifest religion under the ICCPR also encompasses a broad range of acts, such as ritual and ceremonial acts and the wearing of distinctive clothing or headcoverings.119
The freedom to manifest one’s religion or belief is not absolute: limitations are possible under both article 9 ECHR and article 18 ICCPR. Under article 9(2) ECHR the freedom to manifest
114 HRC, Communication No. 931/2000, Hudoyberganova v. Uzbekistan (2004), UN Doc CCPR/C/82/D/931/2000, par. 6.2. Also see: Parker
2006, 100.
115 McGoldrick 2016, 26.
116 HRC Judge v. Canada, par. 10.3.
117 HRC, Communication No. 1321/2004 and 1322/2004, Choi and Yoon v. Republic of Korea (2007), UN Doc
CCPR/C/88/D/1321-1322/2004, par. 8.2.
118 ECtHR, Case of Eweida and others v. United Kingdom (2013), Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, par. 82. 119 HRC, General Comment No. 22: Article 18 (Freedom of Thought, Conscience or Religion) (1993), UN Doc CCPR/C/21/Rev.1/Add.4,
one’s religion or belief 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. Under article 18(3) ICCPR the ‘freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’. The HRC has stated that these limitations are to be interpreted strictly so that only the listed restrictions are allowed.120
2.3 – Sub-conclusion
In terms of composition and application criteria, the ECtHR and the HRC do not differ much. However, four important procedural differences were found. Firstly, the ECtHR employs a written procedure but allows for a public hearing, whereas the procedure before the HRC is fully written. Secondly, subsequent litigation is possible before the HRC but impossible before the ECtHR. Thirdly, there is a formal difference between the legal status of the judgements of the ECtHR and the views of the HRC. And lastly, the individual complaints procedure before the ECtHR is compulsory for State parties to the ECHR, while this procedure before the HRC is optional for ICCPR State parties.
From a substantive point of view, the freedom to manifest religion is declared in a similar manner by the ECHR and ICCPR. Furthermore, both bodies refer to the general rules of treaty interpretation laid down in the VCLT and to the ‘special nature’ of human rights treaties, and interpret the ECHR and ICCPR dynamically and autonomously. However, two important substantive differences became apparent. While the bodies use similar standards of review, the HRC explicitly does not employ the margin of appreciation doctrine, a doctrine that is well-established in the ECtHR’s jurisprudence. Moreover, the ECtHR interprets the ECHR as being part of the broader system of international law and often refers to other instruments such as the ICCPR, whereas the HRC refers to international, but rarely to regional human rights instruments like the ECHR.
From this chapter it can be concluded that both from a procedural and substantive point of view, the differences between the ECtHR and HRC outweigh their similarities. Possibly, these differences are contributing factors leading to decisional fragmentation in some cases.
Chapter 3 – Decisional fragmentation between the ECtHR and the HRC in
their jurisprudence regarding regulation of religious dress
In this chapter, the manifestation of decisional fragmentation in the case law of the ECtHR and the HRC will be explored. This is done by studying several cases with similar factual scenarios regarding the freedom to manifest religion, focussing on regulation of religious dress specifically.
Here it is important to note that decisional fragmentation is a phenomenon that does not occur very often. In most instances, international bodies do follow the reasoning of their prior decisions or of other international bodies.121 Particularly where the ECtHR and the HRC are concerned, there have been relatively few instances in which clear differences in assessment or interpretation arose.122 However, this chapter will analyse and compare jurisprudence in which decisional fragmentation did occur.
3.1 – Regulation of religious dress in document photos: a comparison between the
Shingara Mann Singh cases before the ECtHR and the HRC
In 2008, the ECtHR was confronted with the question whether the French obligation to appear bareheaded on photographs on identity documents was compatible with article 9(2) ECHR. According to Shingara Mann Singh, the Sikh religion requires its members to wear the turban in all circumstances, because it is not only considered to be at the heart of their religion, but also at the heart of their identity.
The Court accepted that the wearing of a turban is an act motivated or inspired by a religion or belief, and therefore the regulation requiring people to appear bareheaded in their driver's license photograph, constituted an interference with the exercise of the right to freedom of religion. The disputed regulation was provided by law and pursued the legitimate aim of ensuring public security. Moreover, the regulation was necessary for the authorities responsible for public security and the protection of public order, particularly in the context of checks carried out to identify drivers and the avoidance of fraud. Furthermore, according to the Court, the implementation of such regulations fell within France’s margin of appreciation, especially
121 Slaughter, ‘A Global Community of Courts’ (2003) 44 Harvard International Law Journal 191, 195. 122 McGoldrick 2016, 45.
since the requirement for persons to remove their turbans for that purpose or for the issuance of the licence was a sporadic one. Therefore, the impugned interference was justified and proportionate to the aim pursued. The application was unanimously declared manifestly ill-founded without any more detailed reasoning.123
In 2013, the HRC decided otherwise in a similar case, regarding the same Shingara Mann Singh who had also brought the above described case before the ECtHR. In the case before the HRC, he also claimed that his freedom of religion had been violated124 during renewal of his passport for which he was obliged to be photographed without his turban.125 France has entered a reservation to article 5(2a) of the Optional Protocol, which prohibits simultaneous and subsequent applications before the HRC.126 However, Singh was able to lodge an application simply because his claim was slightly different from his case before the ECtHR in that he was referring to a different incident, even though his claim was essentially touching the same issue. France called attention to this, by arguing that Singh was basically asking the HRC to disagree with the ECtHR.127 It further claimed that the requirement to be photographed bareheaded was permitted under article 18(3) as it responded to the need to limit the risk of fraud or falsification of passports and facilitated the identification of the passport holder by the administrative authorities.128 Moreover, France brought forward that the constraints involved were only temporary.129
The HRC regarded the wearing of a turban not only as a religious duty, but also as tied in with a person’s identity.130 It argued that while the measure was prescribed by law and pursued the legitimate aim of ensuring public order and safety by verifying whether the person appearing in the photograph was the rightful holder of the passport, it was not necessary and proportionate to the legitimate aim pursued.131 Therefore it decided unanimously that the regulation constituted a violation of article 18 ICCPR.132 To reach this decision, it argued that France had not explained ‘why the wearing of a Sikh turban covering the top of the head and a portion of
123 ECtHR, Case of Shingara Mann Singh v. France (2008), Application No. 24479/07 (in this case the Court did not use any paragraph
numbers).
124 HRC, Communication No. 1928/2010, Shingara Mann Singh v. France (2013), UN Doc CCPR/C/108/D/1928/2010, par. 3.1 (hereafter:
HRC Shingara Mann Singh v. France).
125 HRC Shingara Mann Singh v. France, par. 2.2.
126 Via https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-5&chapter=4&clang=_en (last accessed 10 July 2019). 127 HRC Shingara Mann Singh v. France, par. 6.3-6.4, 6.8.
128 Ibid., par. 6.6. 129 Ibid., par. 6.7. 130 Ibid., par. 9.3. 131 Ibid., par. 9.4. 132 Ibid., par. 9.5.
the forehead, but leaving the rest of the face clearly visible, would make it more difficult to identify the author, who wears his turban at all times, than if he were to appear bareheaded’.133 Furthermore, even a one-time requirement to remove the turban for the identity photograph would potentially interfere with Singh’s freedom of religion on a continuing basis, as he would have to remove his turban during identity checks to resemble his identity photograph.134
The argumentation of the ECtHR and the HRC in these cases differs considerably. While the rights and limitations applied are essentially the same, the HRC and ECtHR reached different positions in their assessment of the frequency of the interference and the way in which the regulation of bare-headedness in identity photographs affects identification issues and Shingara Mann Singh individually. The HRC also put more emphasis on the fact that the wearing of a turban is part of someone’s identity, whereas the ECtHR only regarded it as an act inspired by religion. Moreover, the HRC found France’s explanation to be unconvincing and took a stricter view on the proportionality of the regulation, while in the case before the ECtHR, France was afforded discretion through a margin of appreciation.
3.2 – Regulation of religious dress in schools: a comparison between the Jasvir Singh,
Ranjit Singh and Bikramjit Singh cases
In the cases Jasvir Singh and Ranjit Singh the ECtHR was confronted with two school pupils who were both asked to take off their keski, a small Sikh turban, at school, under a law that prohibited ‘the wearing of signs or dresses by which students ostensibly manifest a religious affiliation’.135 They refused and were permanently excluded from their schools. The question was whether this law is compatible with the freedom of religion under article 9 ECHR.
As the Court already stated in the previously described Shingara Mann Singh case, the wearing of the turban by men of Sikh faith could be considered as ‘an act motivated or inspired by a religion or a religious belief’, and therefore the French law constituted a restriction in the sense of article 9(2) ECHR. The restriction was clearly provided for by law and served the legitimate aim of protecting the rights and freedoms of others and the public order. By referring to its judgements in Dogru v. France136 and Kervanci v. France137, concerning pupils who asked to
133 Ibid., par. 9.4. 134 Ibid., par. 9.5.
135 LOI n° 2004–228 en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les
écoles, collèges et lycées publics of 15 March 2004, JO 17 March 2004.
136 ECtHR, Case of Dogru v. France (2008), Application No. 27058/05. 137 ECtHR, Case of Kervanci v. France (2008), Application No. 31645/04.
remove their headscarves during sports classes, the Court reiterated that in a democratic society, where the role of the State is neutral and where several religions coexist, it may be necessary to limit this freedom in order to accommodate the interests of various groups. It held that prohibition of religious symbols in public schools was motivated by safeguarding the constitutional principle of secularism and fell within France’s margin of appreciation. Moreover, the permanent exclusion was proportionate according to the Court, since the pupils could continue their education in another education institution. The Court unanimously decided that the impugned interferences were justified in principle and proportionate to the aim pursued and declared the claims to be manifestly ill-founded.138
The HRC came to an opposite decision in its Bikramjit Singh case, which also concerned a school pupil who had been denied access to his classes and later was expelled from school because of wearing a keski.139 The decision to expel him was based on the same French law prohibiting the wearing of religious signs or dress at schools that was at stake in the above mentioned Jasvir Singh and Ranjit Singh cases before the ECtHR. The HRC first recognized the principle of secularism and the neutrality of public education in the interest of pluralism and the freedom of others.140 Furthermore, the French law pursued the legitimate aim of protecting the rights and freedoms of others, public order and safety.141 However, the HRC noted that ‘for Sikh males, wearing a keski or turban is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept’.142 And according to the HRC, France did not give compelling evidence that Bikramjit Singh, by wearing his keski, posed a threat to the rights and freedoms of others or to order at the school.143 The HRC also stated that the penalty of his expulsion from school was disproportionate because it had serious effects on his education to which he was entitled in France, like any person of his age. For these reasons, the expulsion of Bikramjit Singh from his school was not necessary under article 18(3) ICCPR and therefore constituted a violation of his freedom of religion.144
In these cases as well, the argumentation of the ECtHR diverged from that of the HRC. While the ECtHR viewed the cases in light of the interests of the State, the HRC acknowledged the
138 ECtHR, Case of Ranjit Singh v. France (2009), Application No. 27561/08 and ECtHR, Case of Jasvir Singh v. France (2009), Application
No. 25463/08 (in these cases the Court did not make use of paragraph numbers).
139 HRC, Communication No. 1852/2008, Bikramjit Singh v. France (2012), UN Doc CCPR/C/106/D/1852/2008 (please note that the
decision in this case was rendered before HRC’s Shingara Mann Singh decision (2013) in the previous paragraph).
140 Ibid., par. 8.2. 141 Ibid., par. 8.6. 142 Ibid., par. 8.7. 143 Ibid. 144 Ibid.
State’s interests, but had more regard for the fundamental rights of the individual. It considered the keski to be an essential component of a Sikh’s identity, whereas the ECtHR found it to be merely motivated by religion. The ECtHR gave great weight to the role of the State as being neutral and the principle of secularism, which make limitations on the freedom of religion necessary, and therefore afforded France with a margin of appreciation. The HRC also mentioned the principle of secularism but was not convinced by France’s arguments in which public interests prevail over the freedom of religion of the individual. Moreover, the HRC took a stricter view in its consideration of the proportionality of the expulsion than the ECtHR: while the ECtHR perceived the permanent expulsion to be proportionate as the pupils could continue their education elsewhere, the HRC found it disproportionate.
3.3 – Regulation of religious dress in public: a comparison between the S.A.S., Sonia Yaker and Miriana Hebbadj cases
In the well-known S.A.S. v. France case145, the applicant challenged the French law prohibiting concealment of the face in public.146 The applicant argued that by preventing her from wearing her burqa and niqab, the ban violated her right to freedom of religion or belief under article 9 ECHR among others.147
An interference with article 9 ECHR was found148, which was prescribed by law149 and pursued the legitimate aims of public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ which fell within the ground of ‘the protection of the rights and freedoms of others’.150 In assessing the scope of the concept of ‘living together’, the Court recognized that the face plays an important role in social interaction and forms an indispensable element of community life within society.151 After this, the Court emphasized that the freedom of religion is one of the most vital elements of the identity of believers and their conception of life, but that it may be necessary to limit said freedom in order to reconcile the interest of various groups and ensure that the State’s role is neutral and impartial.152 After recognizing that a State may find it essential to be able to identify individuals, the Court found that in the context of the rights of women who wish to wear the full-face veil for religious reasons, a blanket ban on face
145 ECtHR, Case of S.A.S. v. France (2014), Application No. 43835/11 (hereafter: ECtHR S.A.S. v. France).
146 LOI n° 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010. 147 ECtHR S.A.S. v. France, par. 76.
148 Ibid., par. 110. 149 Ibid., par. 112.
150 Ibid., par. 115, 117, 121-122. 151 Ibid., par. 122.
concealing clothing in public can only be proportionate when there is a general threat to public safety. As France had not shown that the ban fell within such a context, the ban could not be regarded as necessary in a democratic society for public safety. 153 However, the Court observed that the protection of the rights and freedoms of others indeed fell within the powers of the State to secure the conditions whereby individuals can live together in their diversity.154 It furthermore noted that the restriction only impacted a relatively small number of Muslim women155 and that the law was framed in a neutral manner.156 With the ban, France sought to protect interaction between individuals, which in its view was essential for the expression of pluralism, tolerance and broadmindedness without which no democratic society exists. In the opinion of the Court it had a duty to exercise a degree of restraint in its review of the ban and therefore, in particular since there was little common ground on the issue among Council of Europe Member States, afforded France with a wide margin of appreciation.157 The ban imposed could thus be regarded as necessary in a democratic society and consequently, the applicant’s right to freedom of religion had not been violated.158
In the S.A.S. case, the HRC was mentioned by the ECtHR: it considered the HRC’s interpretation of the freedom of religion in its General Comment 22 and mentioned a number of its cases in which individuals complained of measures restricting the wearing of clothing or symbols with a religious connotation. However, at the time of the S.A.S. judgement, the HRC had not yet presented a view on the French blanket ban on the wearing of the full-face veil in public spaces. In 2018, this changed with the Sonia Yaker and Miriana Hebbadj cases. In these cases, both women were stopped for an identity check while wearing a niqab in the street. They were prosecuted and convicted of the offence of wearing a garment to conceal their face in public159, which was prohibited under the earlier mentioned French law that was also under consideration in S.A.S. v. France.160 Both women challenged this law on the basis of article 18 ICCPR, the freedom of religion.161
153 Ibid., par. 139. 154 Ibid., par. 141. 155 Ibid., par. 145. 156 Ibid., par. 151. 157 Ibid., par 153-156. 158 Ibid., par 153-157.
159 HRC, Communication No. 2747/2016, Sonia Yaker v. France (2018), UN Doc CCPR/C/123/D/2747/2016, par. 2.1. (hereafter: HRC
Sonia Yaker v. France) and HRC, Communication No. 2807/2016, Mariana Hebbadj v. France (2018), UN Doc CCPR/C/123/D/2807/2016, par. 2.1 (since these cases contain similar argumentation, the following paragraph numbers refer to Sonia Yaker’s case).
160 LOI n° 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010. 161 HRC Sonia Yaker v. France, par 3.1.
The HRC considered that the ban constituted a restriction or limitation of the women’s right to manifest their religion.162 It was not disputed that the ban was provided for by law.163 France had put forward that the legitimate aims pursued by the ban were the protection of public safety and order, and the protection of the rights and freedoms of others.164 Regarding the protection of public safety and order, the HRC noted that it may be necessary for a State to identify individuals, but that the ban was not limited to such contexts: the ban comprehensively prohibited the wearing of certain face coverings in public at all times. France did moreover not demonstrate how wearing the full-face veil posed a threat to public safety or order that would justify an absolute ban.165 The second objective put forward by France was based on the concept of ‘living together’166, which was accepted by the ECtHR in the S.A.S. case.167 The Committee found this concept to be vague and abstract, and stated that France did not mention any specific rights or freedoms of others that were affected by the wearing of the full-face veil. Moreover, the HRC noted that the right to interact with any individual in public and the right not to be disturbed by people wearing the full-face veil are not protected by the ICCPR.168 And even if the concept of ‘living together’ could be considered a legitimate objective in the sense of article 18(3) ICCPR, France had failed to demonstrate that the ban was proportionate to that aim or the least restrictive means to achieve it. The HRC emphasized that the ban imposed a significant restriction of the rights and freedoms of Muslim women who wear the full-face veil.169 Therefore, the HRC concluded that the French ban prohibiting concealment of the face in public space and the conviction of the women violated their rights under article 18 ICCPR.
In these last cases, too, the ECtHR and the HRC rendered diverging decisions on basically the same issue. While the justification ‘living together’ played a large role in the ECtHR judgement, the HRC dismissed this justification by stating it was abstract and vague. The HRC clarified that even if it had accepted this justification, it would not have changed the outcome of the case, since the ban was disproportionate and not the least restrictive alternative available to France. This also contrasts with the ECtHR’s approach, wherein the Court accepted that the sanctions attached to the criminal ban were relatively light and deferred to France’s margin of appreciation. 162 Ibid., par. 8.3. 163 Ibid., par. 8.5. 164 Ibid., par. 8.6. 165 Ibid., par. 8.7. 166 Ibid., par. 8.9.
167 ECtHR S.A.S. v. France, par. 141. 168 HRC Sonia Yaker v. France, par. 8.10. 169 Ibid., par. 8.11.
3.4 – Sub-conclusion
From the selected cases it can be concluded that the ECtHR has permitted restrictions on the freedom of religion by deferring to the margin of appreciation which are considered a violation in the eyes of the HRC. You could argue that the outcomes of the analysed cases might have been different if the HRC would also employ the margin of appreciation, which it explicitly does not as seen in the previous chapter, and consequently that the difference in usage of the margin of appreciation at least partly led to decisional fragmentation. Moreover, it can be observed that in general the ECtHR viewed the cases in light of the interests of the State, by accepting arguments about the public security, the public order, secularism and the concept of ‘living together’, while the HRC had more regard for the rights of the individual, by emphasizing that the wearing of religious dress is an essential part of one’s identity. The two bodies also had different views when it came to the proportionality of the interferences. These observations might be due in part to the fact that in all cases before the HRC, it was of the opinion that the State’s argumentation was not sufficient and convincing. It could be argued that this is linked to the fact that, as was seen in Chapter 2, the procedure before the HRC is fully written or to the fact that the HRC does not interpret the ICCPR systemically. The outcome before the HRC in the above cases might have been different if the State could have explained their reasons for limiting the individual’s rights in a hearing, or if the HRC would have taken into account the ECtHR’s interpretation in earlier cases. It could also be reasoned that the fact that the views of the HRC are formally not legally binding, encouraged the HRC to ‘go further’ in terms of human rights protection than the ECtHR in the analysed cases.
Chapter 4 – The implications of decisional fragmentation
In the last few decades, the practice of international courts, tribunals and supervisory bodies has increased considerably.170 More than 50 of such bodies are in existence, most of which have been established in the second half of the twentieth century.171 Not only has the case-load of international judicial bodies expanded, new bodies have been established as well, adopting decisions in an increasing number of cases172, partly because many of these bodies allow to file individual complaints.173
Many States are parties to multiple global and regional conventions, which increases the likelihood for them to be confronted with differing or contradictory interpretations of similar norms in similar factual or legal situations174, in other words: decisional fragmentation.175 Taking a closer look at both the positive and negative implications of decisional fragmentation, the various aspects of this phenomenon will be set out in this chapter. Attention is paid to the implications of decisional fragmentation in general, and more specifically to decisional fragmentation between the ECtHR and HRC in the analysed case law regarding regulation of religious dress.
4.1 – The negative implications of decisional fragmentation
The first negative implication of decisional fragmentation is that it can threaten the unity of the international legal system.176 Most international courts function within their own functional regime and will therefore interpret international law biased by their own framework, having less regard for other international judicial bodies. This can create inconsistencies within the international legal order.177 This holds true certainly for the jurisprudence analysed in Chapter 3: the outcomes of the similar cases differ considerably, making it unclear whether the restrictions on religious dress are a violation of religious dress or not. It could be argued that most international bodies are mindful of the jurisprudence other bodies create and do not wish
170 Fauchald and Nollkaemper, The Practice of International and National Courts and the (De-)Fragmentation of International Law, (Oxford
Hart Publishing 2012) 1 (hereafter: Fauchald and Nollkaemper 2012).
171 Alford, ‘The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance’ (2000) 94 American Society
of International Law Proceedings 160, 160.
172 Fauchald and Nollkaemper 2012, 1. 173 Buyse 2015, 2.
174 Buyse 2015, 2. 175 Webb 2013, 6-7.
176 Hafner, ‘Pros and Cons Ensuing from Fragmentation of International Law’ (2004) 25 Michigan Journal of International Law 849, 854. 177 Fauchald and Nollkaemper 2012, 11.
