Public Law Studies Quarterly

Freedom of Muslim Women's Religious Clothing from the Perspective of International Law with Emphasis on ECHR Jurisprudence

Document Type : Article

Authors

Sayed Taha Mousavi Mirkalayee 1
Mohammad Dehnavi 2
Savalan Mohamadzadeh 3

1 Former Assistant Prof., Department of Public Law and International Law, Faculty of Judicial Law, University of Judicial Sciences and Administrative Services, Tehran, Iran

2 MA. in (International Law), Faculty of Judicial Law, University of Judicial Sciences and Administrative Services, Tehran, Iran

3 Researcher of The Human Rights and International Law Department of The Judiciary Research Institute

https://doi.org/10.22059/jplsq.2022.332417.2917
Abstract
Since in recent decades, some European countries have placed restrictions on Muslim women's clothing, it is necessary to explain the status of women's freedom of clothing in the context of international law. This study using the judgments of the European Court of Human Rights and international instruments and obligations in this field, tries to challenge the inconsistency of restrictions on the religious clothing of Muslim women and explain the need to ensure the right to freedom of religious clothing. The main question of the present paper is that the opposition to religious clothing and hijab of women in European countries is contrary to international law and human rights or not? This paper concludes with a descriptive-analytical method and library resources including the examination of existing instruments that the prohibition of religious clothing is a violation of human rights and their religious freedom, and such a prohibition is based more on political and social pressures than on solid legal principles.

Keywords

freedom to manifest religion
religious freedom
religious clothing
hijab
the european court of human rights

  1. English

    1. A) Books
    2. Hammarberg, Thomas (2011), Human rights in Europe: no grounds for complacency, 1st Edition, Council of Europe Publications, Strasbourg.

     

    1. B) Articles
    2. Barnett, Laura (2004), "Freedom of Religion and Religious Symbols in the Public Sphere", France, Law and government division, Library of Parliament, pp. 1-24.
    3. Rorive, Isabelle (2009),"Religious Symbols in The Public Space: In Search of a European Answer", Cardozo Law Review, Vol. 30:6, pp. 2669-2698.

     

    1. C) Documents
    2. Charter of the United Nations, 1945.
    3. European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms), 1950, Council of Europe.
    4. International Covenant on Civil and Political Rights, 1966, United Nations General Assembly.
    5. Universal Declaration of Human Rights, 1948, United Nations General Assembly.

     

    1. D) Cases
    2. ECHR, Abdulaziz, Cabales and Balkandali v. United Kingdom (Application Nos. 9214/80; 9473/81;9474/81) Judgment of 28 May, 1985.
    3. ECHR, Belcacemi and Oussar v. Belgium (Application No. 37798/13), Judgment of 18 July, 2017.
    4. ECHR, Buckley v. the United Kingdom (Application No. 20348/92) Judgment of 25 September, 1996.
    5. ECHR, Dahlab v. Switzerland, (Application No. 42393/98), Judgment of 15 February, 2001.
    6. ECHR, Dogru v. France (Application No. 27058/05), Judgment of 4 December, 2008.
    7. ECHR, Ebrahimian v. France (Application No. 64846/11), Judgment of 26 November, 2015.
    8. ECHR, El Morsli v. France (Application No. 15585/06), Judgment of 4 March, 2008.
    9. ECHR, Handyside v. the United Kingdom, Application No. 5493/72, Judgment of 7 December, 1976.
    10. ECHR, Hatton and Others v. the United Kingdom [GC] (Application No, 36022/97), Judgment of 8 July, 2003.
    11. ECHR, Kervanci v. France (Application No. 31645/04), Judgment of 4 March, 2009.
    12. ECHR, Kokkinakis v. Greece (Application No. 14307/88), Judgment of 25 May, 1993.
    13. ECHR, Köse and 93 Others v. Turkey (Application No. 26625/02), Judgment of 24 January, 2006.
    14. ECHR, Kurtulmuş v. Turkey (Application No. 65500/01), Judgment of 1 January, 2006.
    15. ECHR, Lachiri v. Belgium (Application No. 3413/09), Judgment of 18 September, 2018.
    16. ECHR, Leyla Şahin v. Turkey, (Application No. 44774/98), Judgment of 29 June, 2004.
    17. ECHR, Leyla Şahin v. Turkey [GC] (Application No. 44774/98), Judgment of 10 November, 2005.
    18. Manoussakis and Others v. Greece, (Application No. 1874891), Judgment of 26 September, 1996.
    19. ECHR, Refah Partisi (the Welfare Party) and Others v. Turkey [GC] (Application Nos. 41340/98, 4134298 and 41344/98), Judgment of 13 February, 2003.
    20. ECHR, S.A.S. v. France (Application No. 15585/06), Judgment of 1 July, 2008.
    21. ECHR, S.A.S. v. France (Application No. 43835/11), Judgment of 1 July, 2014.
    22. HRC, Hebbadj v. France (Communication No. 2807/2016), Decision of 17 July, 2018.

     

    1. E) Sites
    2. https://www.amnesty.org/en/latest/news/2020/05/face-masks-and-niqabs/
    3. https://www.hrw.org/news/2014/07/03/france-face-veil-ruling-undermines-rights
    4. http://www2.ohchr.org/english/issues/religion/standards.htm#I3

    Council of Europe, COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS, Fatima El Morsl, 2008, Available at: www.legislationline.org/download/id/4592/file/ECHR_case_EL%20MORSLI%20v.%20FRANCE_2008_en.pdf

     

    References in Persian

    1. A) Books
    2. Stuart Mill, John (2016), Treatise On Liberty, Translated by Sheikh Al-Islami, Javad, 6 th edition, Tehran: Scientific and Cultural Publications (in Persian).
    3. Rahai, Saeed (2014), Religious Freedom From the Perspective of International Law with a Look at the Islamic Path, Second edition, Qom: Mofid University Press (in Persian).

     

    1. B) Articles
    2. Shamsi, Ahmadreza (2011), “Europe's International Obligations Regarding the Freedom of Hijab”, Tehran: Foreign Policy Quarterly, Vol. 25, issue 1, Spring, pp. 147-170 (in Persian).
Public Law Studies Quarterly
Volume 54, Issue 2 - Serial Number 38
Summer 2024
Spring 2024
Pages 1255-1278

  • Receive Date 16 October 2021
  • Revise Date 28 December 2021
  • Accept Date 17 April 2022

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