As France is set to move closer to barring Muslim women from wearing the full Islamic veil in public places, questions arise as to what extent is the ban legally justifiable. Following the recent uproar on the minaret ban in Switzerland, questions on the legality of anti-Islam measures are on the rise.

To what extent can the law limit citizens of Europe in terms of their religious practices as a fundamental human right?

“It is possible to restrict certain human rights…our freedoms of expression and of religion are not unlimited”, says Yvonne Donders, Executive Director of the Amsterdam Center of International Law and Associate Professor of International Law.
 

Measures must address three basic criteria to be legal:

•  Any measure must be done by law (i.e. must pass parliamentary vote, for instance);

•  It has to have a legitimate aim (in the case of the burqa ban, the issue of public security or promotion of gender equality could be raised);

•  the “proportionality test” must be met – is the measure necessary and proportionate to the aim to be achieved?

The last, says Donders, presents the main legal problem. If, for instance, a ban on burqas in France is grounded on a security concern, then the government needs to ensure that such ban is not too general but restricted in terms of addressing the concern. Subsequently, one cannot legally outlaw the wearing of full-face veils per se but must restrict its scope.
 

While President Nicolas Sarkozy set a strong tone for the debate when he declared the burqa “not welcome” in France and described it as a symbol of women’s “subservience”, outlawing the burqa must be restricted to areas of public service, such as hospitals, educational institutions, libraries, etc.

Public security
Balancing, on one hand, the interest by a State in safeguarding security and creating an open society in which people can function on equal terms, and on the other, respecting the freedom of religious practices by a particular community, is a task that independent courts can best decide on. While threat to public security is a legitimate concern, Donders argues that in fact it is “very unfounded”: “Lets face it, we don’t see women in burqas blowing themselves up all the time in Europe … and secondly, you can hide explosives wherever you want, you don’t need a burqa necessarily to do that.”

Gender equality
Conversely, the law may target the apparent inequality between men and women in society that, according to some, is reinforced by women wearing a full-face veil. Wearing a burqa might indeed spell “submission” but on the other hand, it allows women to participate in Islam the way they want to. Otherwise, says Donders, “they wouldn’t even perhaps be able to go out in public”.
 

In addressing inequality as a legitimate aim of legislators, Donders asks whether “a government should interfere in those religions … [since] the Catholic church is also making a very large difference between men and women, for example, women cannot become priests?” The proportionality of the measure is thus again tested.

Background and outcome
Regarding the upsurge of anti-Islam measures, witnessed by the minaret and burqa ban initiatives, Donders claims that indeed such trend “is not that recent. France had already introduced a ban on women wearing head scarves in public schools since 2008: “It’s the unfortunate general feeling in Europe that Islam is something that we should be afraid of … we tend to think [that Muslim] persons are all terrorists and so the debate becomes very sensitive and unbalanced.”
 

As for resonances in other European societies, France’s ban on burqas “will mainly be a political one at first”, says Donders. “Politicians in the Netherlands or the UK would say: ‘you see, it is possible.’”
 

In fact, there are currently legislators working in the Netherlands to outlaw the wearing of burqas. “It is up to the European Court of Human Rights (ECHR) to decide. Since it always takes a number of years for the outcome of a case to be public, I’m sure that other countries [in Europe] will try to pass legislation as well”, says Donders.

The effect of the ban thus remains to be tested over time.