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In 2014, the European Court of Human Rights (ECtHR) in its decision in SAS v. France found the French ban on the wearing of the full-face veil to be compatible with the European Convention on Human Rights, denying a violation of the relevant human rights. The interference with religious freedom caused by the ban was considered to be justifiable in view of the objective of ensuring’ the minimum requirements of life in society’ (vivre ensemble ), while the Court's examination of the right to equality confined itself to a brief reference to the considerations concerning freedom of religion. In its decisions in Yaker v. France and Hebbadj v. France, the United Nations Human Rights Committee (UNHRC) came to an entirely different conclusion in 2018. Not only did it disagree with the general findings of the ECtHR in affirming a violation of the French ban against freedom of religion and the right to equality, but the decisions also differ significantly with regard to the details of argumentation, such as the applicable grounds of justification as well as the consideration and independent analysis of the (intersectional) discrimination at stake. This chapter conducts a comparative analysis of the divergent decisions, contextualizing them in terms of legal policy considerations.
Practices of religiously motivated full concealment of the face, known as the phenomena of burqa and niqāb, have become a battleground of symbolic struggles on cultural identity. For significant parts of the majority populations in Western European states, the burqa serves as a symbol of the threatening’ other’ linked with migration from Islamic countries, a symptom of the menace constituted by militant (political) Islam for the core values of European culture. The wearing of the burqa and niqāb is often seen as an assault on cultural traditions of majority’ nations’ in Europe, and thus is perceived as a disquieting phenomenon. On the other hand, wearers of the burqa and niqāb perceive their explicit’ outing’ as the’ other’ as an expression of their fundamental difference in terms of cultural and religious identity, if not as marker of a’ true’ belief taken seriously.
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