Balancing Competing Interests: Muslim Women v. the European States

The aim of this post is to examine whether, under Article 9 of the European Convention on Human Rights (‘ECHR’), a balance can be done between the right to wearing of religious clothing in public places (particularly, burqa and niqab) and the right of States to set a pluralist and democratic society. It further concludes that a successful balance can be done based on this provision, although the outcome might be influenced by the historical and cultural background of the European States.

Article 9 of the ECHR ensures everyone the “freedom of thought, conscience and religion” which includes, inter alia, the freedom of manifest the own religion either alone or in community with others and in public or private.[1] It also includes the right not to act contrary to one’s conscience and convictions and the right to wear religious clothing and symbols.[2] Furthermore, States must ensure this right to everyone within their jurisdiction,[3] remain neutral and impartial,[4] refrain from interference in its exercise or provide a legal justification thereof, and refrain from interference in intra or inter-denominational conflicts.[5]

Consequently, the right to manifest one’s beliefs is not an absolute one, and it can be subjected to limitations as long as they fulfil the conditions set in Article 9(2).[6] According to this provision, any limitation shall be prescribed by law and be 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.[7] It is precisely this test the one applied by the European Court of Human Rights (‘ECtHR’) when balancing interests related to the freedom of religion.[8]

However, at first glance, it can be noticed that the wording of this provision is vague and ambiguous, and what is considered as “necessary in a democratic society” usually drives to philosophical debates in which a unique answer cannot be reached. It is, therefore, the role of the ECtHR to decide whose interests should be granted more weight on a case-by-case basis, since the rules in this sphere rely upon the specific domestic context.[9]

The ECtHR has exclusively decided whether the ban on wearing clothing designed to conceal one’s face in public places violates Article 8, 9, 10 and 14 ECHR in the case of S.A.S. v France.[10] In this regard, the French national ban on the wearing of burqa and niqab in public places was considered legitimate and justified as far as it seeks to guarantee the conditions of “Vivre ensemble” as an element of the “protection of the rights and freedoms of others”.[11] Yet, this decision outlines further interests at stake beyond the freedom of religion in the abstract.

On one side, Muslim women wear the full-face veil as an important part of their social and cultural identity.[12] Indeed, to force them to remove this clothing might lead not only to intersectional discrimination against Muslim women (in a violation of Article 14 ECHR),[13] but also to the reinforcement of negative stereotypes and Islamophobia that could lead to their exclusion and alienation of European societies.[14]

On the other hand, States usually allege national security interests to justify the interference to this right, even though the ECtHR has stated that it cannot be used as the sole basis for this aim.[15] Additionally, they have interest in preserving the respect for the “minimum set of an open and democratic society”, linked to the observance of the minimum requirements of life in society, the equality between men and women and the respect for human dignity.[16]

In this line, the ECtHR has afforded States with a wide margin of appreciation to enact any law necessary to limit the wearing of burqa and niqab,[17] but in hand with a European supervision of both the kind of laws and the decisions applied.[18] For this reason, when assessing the French law and applying the test within Article 9(2) ECHR, the ECtHR concluded that the right to others to live in a space of socialization which makes “living together” easier was the prevalent interest; but it also pointed out that no State can assess the legitimacy of religious beliefs or the way they are expressed,[19]  and that a fair treatment of people from minorities shall be ensured in order to avoid any abuse of dominant position.[20]

In conclusion, States that banned the use of burqa and niqab based their argumentations in a model of a society deeply rooted in the cultural tradition of secularism of Western Europe (as opposed to the model held by Muslims, in their majority immigrants) that unsurprisingly has been followed by the ECtHR.[21] Notwithstanding, Article 9 ECHR presents a mechanism for balancing clashing interests and provides the ECtHR with the opportunity to adjust those to any given context through flexible interpretation. The fact that the outcome of this balancing does not satisfy our ideological preferences, does not mean that Article 9 does not enable the balance of both-side interests when interpreting and applying it.

[1] Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14 (‘ECHR’) [1950] ETS No.005, Article 9(1).

[2] European Court of Human Rights (‘ECtHR’) Guide to Article 9 (2015) [18]-[37].

[3] ECHR, Article 1.

[4] ECtHR (fn 2) [37].

[5] Ibid [168].

[6] Ibid [23].

[7] ECHR, Article 9(2).

[8] In this regard, Leyla Şahin v. Turkey [GC], no. 44774/98, ECHR 2005-XI [110], Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, 12 June 2014 [58], between others.

[9] Leyla Şahin v. Turkey (fn 8) [109].

[10] S.A.S v France [GC], no. 43835/11, ECHR 2014.

[11] S.A.S. v France [157].

[12] Ibid [79].

[13] Ibid, intervention of ARTICLE 19 [92]-[94].

[14] Ibid, intervention of Human Rights Centre of Ghent University [98].

[15] ECtHR (fn 2) [31].

[16] S.A.S. v France, Explanatory Memorandum of the Bill’s transcription [25] and Judgment of the Belgian Constitutional Court of 6 December 2012 B.21.

[17] S.A.S. v France, [129].

[18] Ibid [131].

[19] Ibid [55].

[20] Ibid [128].

[21] See the cases of France, Belgium and Austria.

Tango and International Law

Tango is part of the UNESCO Representative List of the Intangible Cultural Heritage of Humanity since 2009.

It does not only embrace the dance -which is the most known feature of this marvellous tradition-, but it also includes musicians, composers, interprets, songwriters, teachers of the art and the national living treasures. Just to mention some of my favourite ones:  Manzi, Cadícamo, Discépolo, Trolio, Piazzola, Rivero, Gardel, Goyeneche and Sosa.

Tango was developed by the urban lower classes in Buenos Aires and Montevideo in the Rio de la Plata basin. As a dance, it has influences from the descendants of the African slaves and the Native American and European culture in the figure of the ‘criollos’. Their wide range of customs, beliefs and rituals merged and transformed into a distinctive cultural identity, which remains today as a national brand for Argentina and Uruguay.

However, it was not until the 20th century that tango was brought to Europe: the first tango craze took place in Paris, followed by London, Berlin and other capitals around the continent. Certainly, the rhythm played by the ‘bandoneonistas’ remind us the streets of Montmartre; while the nostalgic and dramatic -though greatly romantic- lyrics make us think about the Italian roots of their characters. All in all, the music, dance and pure poetry of tango both embodies and encourages diversity and cultural dialogue, which characterizes the Argentian and Uruguayan society nowadays.

But… what does it mean that Tango forms part of the UNESCO Representative List of the Intangible Cultural Heritage of Humanity?

First, that it must be safeguarded at the international level. All those States which have ratified the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage have a duty to safeguard, ensure respect and raise awareness of its importance; providing for international cooperation and assistance to this end (Article 1).

Second, at the national level, Argentina and Uruguay are compelled to take the necessary measures to ensure that tango still alive through the adoption of general policies aimed at promoting it in their societies; fostering artistic studies and the creation of institutions for training in the management and transmission of tango, ensuring forums and spaces intended for its performance; ensuring access to tango while respecting customary practices governing it; provide educational, awareness-raising and information programmes particularly to young people; and ensure the widest possible participation of communities, groups and individuals that enrich, maintain and transmit the tango to the new generations (Part III).

As far as I could have seen when I was in Argentina, tango is not only promoted -which can be related to economic interests, given the rising amount of tourists that visit “Caminito” every year- but it is also highly internalized in the peoples: everyone listened to it at home while drinking mate with their relatives on Sundays.

Personally, I absolutely love it and I am glad to have discovered today that it is part of the international law: two passions in one.

As a gift, the masterpiece of ‘Adios Nonino’, one of my favourite tangos:

 

 

II Experience in the Philip C. Jessup Int’l Law Moot Court Competition

One year ago I was writing the first part of this post: see it here (Spanish version).

Today, I see myself recovering from one of the most wonderful moments of my academic life. Every time I think about what happened on Friday, and what we are going to do in the future, I feel this kind of comfortable sentiment that every tear dropped, every inhumane effort, every hour of lack of sleep have worth it. Everything for that moment in which we were sitting before the Court, and we take our hands waiting for the President to say the magical words… and suddenly, I saw myself surrounded by my team, crying like babies. 

If I learnt something from this (second) experience of Jessup is that LOVE ALWAYS WINSTiffany E-aRashmi DhariaGeorgia Beatty and Nin J. Jitwarawong thank you guys for being always there for each other; for being extremely supportive and patient, and for being lovely friends with the feet on the ground. I am so proud of all of you. After 5 challenging months meeting 7/7, you have already got my heart.

Thank you also to Sophie Schiettekatte, Felipe Silvestre and Charlotte S LH because, without you coaches, this would have been impossible! We learnt a lot from you, and you made us the better version of ourselves. You have dealt not only with your issues but also with ours; you have been there for us in the good and, most importantly, in the bad moments. You are inspiring humans and I admire you precisely for who you are and what are you doing.

I would like also to thank all that people that supported us since the very first time: primary to our families; they always believed in us and gave us breath to continue in the distance (I miss you so much, daddy, mommy and Andy); secondly to all the PhD Candidates, Professors and other academic staff that took their time to judge us during the training. We really appreciate it and we hope to have had fulfilled your expectations as students from Leiden Univ. It was an honour to have all your feedback.

Personally, I would never have imagined doing what I did on Friday, and I am truly impressed and grateful. Definitely, WE ARE A PINEAPPLE!

Now it’s time to start thinking about how a team of British, French, Indian, Thai, and Spanish people will represent HOLLAND in Washington (with all the respects to the Dutch people).

The Lotus dictum under consideration

Since the ninetieth century, a shift towards positivism is found under international law.[1] This paradigm embraces the absence of general international law different from the specific treaties concluded between independent States. Precisely, Dionisio Anzilloti’s decisions as a judge at the P.C.I.J. propagated this voluntarist approach in continental European countries.[2] One of the most remarkable dictum in this sense was the Case of the S.S. “Lotus”[3] where the P.C.I.J. expressed this idea of international law governed by States, either as subjects and objects of the law itself.

Put in its context, Lotus dictum may appear suitable in the international law realm of 1927. However, issues related to (i) sources of international law and (ii) international law subjectivity, among others, have evolved since then. Accordingly, the purpose of this essay is to demonstrate how these arguments continue to be valid up-to-date in some of their statements, albeit at the same time they are outdated in others.

Continue reading, here.

 

 

[1] H. Scupin, ‘History of International Law, 1815 to World War I.’ Max Planck Encyclopedia of Public International Law (OPIL 2001), paras. 1-8.

[2] F. Lachenmann, ‘Legal Positivism.’ Max Planck Encyclopedia of Public International Law (OPIL 2011), para. 28.

[3] The Case of the SS “Lotus” (France v. Turkey) [1927], P.C.I.J. Series A No 9, at 18.

FACEBOOKISTAN (OR THE NATION OF FACEBOOK)

FACEBOOKISTAN

It is pretty curious how the Facebook Inc. creators and some employees refer to the corporation as a tool for increase the openness of its on-line social networking service and improve connections between people worldwide (1). Mark Zuckerberg’s (2) website was launched in 2004, and since then, the community of users has increased to account for 2 billion people. This means that if Facebook were a nation, it would be the most populated in the world (3).

Its functions are simple to understand: once a certain user is registered, he or she would be able to create his or her own profile, add other users as “friends”, post status updates, share photos or videos, exchange “private” and public messages, etc. Users can join common-interest user groups indeed (4). However, as soon as providing personal information is needed, several questions may come to us: What does Facebook do with all these pieces of information? What are the rules in this nation of Facebook? What are the consequences if anybody would breach them?

These are some unsolved inquiries that Facebookistan tries to bring forward.

FACEBOOK AND THE RIGHT TO PRIVACY IN THE DIGITAL AGE

As a Multinational Corporation (MNC), Facebook has more control over human, natural and financial resources than some of the States in which it operates (5). In addition, it is not bound by UN principles and other International Agreements held between those same States. Corcerning the right to privacy, international Human Rights law provides an universal framework for their promotion and protection (6). It is enshrined by several instruments, being outlined in its capital importance the article 12 of the UDHR. According to it, no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence […] Everyone has the right to the protection of the law against such interference or attacks (7).

This statement contrasts with the fact that every Facebook user is being tracked without their conscious consent and all his or her movements are kept on record for roughly 20 years. The company leverages the extremely complex Privacy Policy that it offers to its users, who accept the Terms even before reading it. Furthermore, nobody is able to know what happens in its background or who is the responsible for the events that occur in it.

What Facebook doesn’t say is that it gets further data than those particularly provided by a certain user, associating him or her with a group of people that the individual is related to. Michal Kosinski’s computing model demonstrated that psychological and demographic statements could be guessed by the Likes people click, indeed. This means that a sort of arbitrary surveillance and collection of personal data is being accomplished, while users lose control of all their information flowing through the internet.

Resolution 68/167, adopted by the UNGA in December 2013, expresses this deep concern at the negative impact that surveillance and interception of communications may have on Human Rights. As highly intrusive acts, these activities violate the rights to privacy and to freedom of expression, being both essential pillars of modern democratic society.

Facebook knows how poweful information is, not only for governments but also for other companies. Following the rational choice theory, the principal aim of Facebook is to have the monopoly on data as personally specific as possible, over many years. In fact, in 2014, Facebook made 10 dollars per user, reaching a maket value estimated in 200 billion dollars, according to EDRi recent studies. Such a ‘success story’ is directly tied to the surveillance practices discussed earlier, therefore, its misuse and the violation of the right to privacy and the right to be forgotten have to be seen as the cornerstone of the Facebook Business Model and as such, as an element unlikely to change on its own.

FACEBOOK AND THE FREEDOM OF SPEECH

As said before, Facebook has the power to violate Human Rights directly, assisting in trespasses, failing to prevent them, remaining silent or simply operating in States that systematically violate Human Rights (8), as we can see in the case of the Turkish Halklann Demokatik Partisi, where the media, in favour of the ruling party, prevents the proliferation of support actions for the Kurdish PKK-movement.

As the article 19 of the ICCPR (9) disposes, everyone shall have the right to hold opinions without interference and the right of freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds […] through any media of his choice. However, this exercise carries with it special duties and responsibilities, e.g., the freedom of speech is subject to several restrictions provided only by law; these are (i) the respect of the rights or reputations of others and (ii) the protection of national security or of public order, health or morals.

Censorship is the most striking limitation of these rights. To be legal, it must be justified in non-discrimination terms, so that the same censorship has to be applied in similar circumstances. The breach of this general principle is what Peter Ovig denounces in his book The Danish Case. Facebook has the monopoly for interpretation and enforcement its Community Standards, written in deliberately indeterminate terms. Only if users respect and carefully construe these rules, they would be able to stay in Facebook. Otherwise, a procedure for the appeal of decisions is not at their disposal. This implies that users are owed to censor themselves, having the CS negative implications on the independence of these individuals.

The problem is that Facebook has become the mainstream media, and as such, has prevented some silent collectives from expressing themselves. Examples of these are the #MyNameIs coalition, the SNHR or other kinds of activism. Also for professional aims, either individual or collective, as promotion, advertising or attracting the general public attention, Facebook is an indispensable tool, as for many entrepreneurs being left out would be a step backwards.

Taking into account these wide range of utilities, the existence of Content Moderators becomes fundamental. These are normal workers hired by Facebook, and the ones responsible for deciding whether user-contributed content transgresses the CS or not. Owing to this, there lies the risk that the CS would be interpreted differently, according to the employees’ beliefs, preferences and values. In addition, these workers have long shifts and their payment is based on the content reviewed, so this frantic speed expected from them often makes them click on the wrong button, rendering this system not very accurate at all. Finally, attention must also be paid to the private police of Facebook, who are the users themselves. They enforce the terms of service and are able to report each other based on their personal considerations, with no democratic legitimacy whatsoever.

CONCLUSION: THE FACEBOOK’S LEGISLATIVE GAP

Nowadays, the system of justice in Facebook is completely dysfunctional. The Office of the Data Protection Commissioner in Ireland is responsible for claims against huge companies such as Apple, Google or Facebook in Europe. However, claimants can always move their cases to their national courts as consumers (10). With the recent occurrences, the Court of Justice of the EU has also become involved, having ruled in favour of the victims. In fact, in October 2015, the CJEU ruled that the data transfer pact, known as safe-harbour between the US an Europe was invalid, and that European citizens’ privacy had been breached by the NSA’s mass-surveillance programme (11). Facebook an other US companies operating in Europe can no longer transfer unlimited amounts of data to US without consulting National Data Protection Agencies.

For that reason, in the International scenario, Resolution 68/167 calls upon the States to take measures to put an end to violations of those rights and to create the conditions to prevent them. Those include, but are not limited to, ensuring that relevant national legislation complies with their obligations under international human rights law; and establishing existing independent, effective domestic oversight mechanisms capable of ensuring transparency and accountability for State surveillance of communications, their interception and the collection of personal data.

The need to provide an effective forum for victims looking for redress rises as urgent, as Max Schrems case and his platform (Europe v. Facebook) has demonstrated. In this field, there is ample room for research, where Public and Private International Law have a main role. Special attention must be paid to the recent developments in US doctrine and case law, given the fact that the US Alien Tort Claims Act has played a key role in attracting to the US many cases against corporations for violations of Human Rights. Jurisdictional issues -Human Rights litigation and non-judicial redress mechanisms-, applicable law issues and MNCs national and international obligations and standards of care are new legislative challenges which we must face, not only at the EU level, but also facilitating the access to EU-Members state courts for victims outside Europe (12).

On the other hand, people have the right to be forgotten if they so consent and the right to preserve their personal information, limiting its use and preventing the occurrence of abuses as Paolo Cirio’s experiment showed. In this sense, governments should ensure that communication surveillance regimes are consistent with Human Rights standards, committing further to specific areas of increased control and transparency. The notion of freedom we have in the Western Society is based on the idea that we can hide information from the others. Nonetheless, currently those values are disputed.

As George Orwell wrote in 1984: if you want to keep a secret, you must also hide it from yourself.

References

(1) See https://www.facebook.com/facebook/info/?tab=page_inf
(2) Notice that Eduardo Saverin, Andrew McCollum, Dustin Moskovitz and Chris Hughes were the co-funders of the website.
(3) See http://youtube.com/whatch?v=JCyO5uT9XfU
(4) For further information, http://en.wikipedia.org/wiki/Facebook
(5) Kieserman, B.J. (1999), “Profits and principles: promoting multinational corporate responsibility by amending the Alien Tort Claims Act”, The Catholic University Law Review, Vol. 4, Spring, p. 881.
(6) See http://www.ohchr.org/EN/Issues/Privacy/SR/Pages/Internationalstandards.aspx
(7) Universal Declaration of Human Rights, United Nations Department of Public Information, NY. Resolution 217 A (III) 10th December 1948, Paris.
(8) Clapham, A., & Jerbi, S. (2000). Categories of corporate complicity in human rights abuses. Hastings Int’l & Comp. L. Rev., 24, 339.
(9) International Convenant on Civil and Political Rights. General Assembly Resolution 2200A (XXI) 16th December 1966, UN Headquarters, NY.
(10) Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis), article 7.2.
(11) See CJEU’s Decision Invalidates Safe Harbor (October 2015)
(12) For further information, http://humanrightsinbusiness.eu/