COLUMN HUMAN RIGHTS AND CULTURAL DIVERSITY: TOO HOT TO HANDLE?

COLUMN HUMAN RIGHTS AND CULTURAL DIVERSITY: TOO HOT TO HANDLE? Yvonne Donders It is widely agreed that human rights and cultural diversity have a mutu...
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COLUMN HUMAN RIGHTS AND CULTURAL DIVERSITY: TOO HOT TO HANDLE? Yvonne Donders It is widely agreed that human rights and cultural diversity have a mutually interdependent and beneficial relationship. Many human rights, such as the rights to freedom of expression, freedom of religion, freedom of assembly, as well as the rights to take part in cultural life and to education, play a direct role in the promotion and protection of cultural diversity. At the same time, the enjoyment of human rights is promoted by a pluralistic society. The Universal Declaration on Cultural Diversity, adopted by the Member States of UNESCO in 2001 provides that ‘the defence of cultural diversity is…inseparable from respect for human dignity’ and ‘implies a commitment to human rights and fundamental freedoms’. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) states that ‘cultural diversity can be protected and promoted only if human rights and fundamental freedoms…are guaranteed’. The manner in which this relationship works out in practice is, however, often the subject of heated debates at national and international level. These debates often centre around religious issues. Recently, for instance, portrayals of the prophet Mohammed in a fi lm and in cartoons and the violent protests by Muslims stirred up the discussion on the possible conflict between freedom of expression and freedom of religion. Another current example is the debate on the (proposed) ban on wearing facial coverage in several Western European States, which was preceded by similar discussions about students and teachers wearing religious symbols, such as headscarves, turbans and kippas in public schools. In Germany, passionate debates took place on male circumcision after a German Court ruled that this religious practice amounted to bodily harm. Cultural diversity is of course broader than religion and its relationship and interaction with human rights may raise many other hot topics. In the Netherlands, for instance, ardent discussion has taken place on whether double nationality could lead to a lack of Dutch identity and loyalty, and on whether the celebration of ‘Sinterklaas’ should be acknowledged as intangible Dutch cultural heritage or be dismissed as a racist festivity. Other possible issues include the use of minority languages in court, education in minority languages, the recognition of non-formal marriage and divorce rituals, and land rights for indigenous communities in relation to economic development. The reason debates on these issues are often heated and polarised is Netherlands Quarterly of Human Rights, Vol. 30/4, 377–381, 2012. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.

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because they concern expressions of the culture, identity and dignity of individuals and communities. Their link with human rights may raise a potential conflict between rights, or involve limitations of rights to protect certain groups or society. One of the main challenges in the analysis of the relationship and interaction between cultural diversity and human rights is formed by the dynamic and complex notion underlying cultural diversity: the concept of ‘culture’. Apart from the abundance of definitions of ‘culture’, it is a concept with a dynamic and changeable character, being not only a product but also a process. It has an objective dimension, reflected in visible characteristics such as language, religion, or customs, and a subjective dimension, reflected in shared attitudes, ways of thinking, feeling and acting. It also has both an individual and a collective dimension. While culture is generally considered to be important to human beings and to communities, at the same time it is not an abstract or neutral concept, and it may be a mechanism for exclusion and control. Some harmful aspects of culture are reflected in cultural practices that are very questionable from a human rights perspective. Thus, an important question is: who decides to what extent cultural diversity should be promoted and which cultural aspects should be protected? As cultures are dynamic, which interpretation of a certain cultural practice or activity should be accepted and who has the authority to carry out such an interpretation? These questions demonstrate that the breadth, complexity and sensitivity of cultural diversity are serious challenges to the integration of this concept into human rights law. One may wonder whether the human rights framework, and in particular the legal human rights framework, is suitable for the accommodation of cultural diversity and the large variety of issues that it brings. Is law not too static to accommodate the complexity and dynamics of cultural diversity? Are the necessary clarity and consistency of the law reconcilable with the flexibility necessary to accommodate cultural diversity? Focusing on international human rights law, I have argued that this system, including its standards and supervisory mechanisms, is flexible enough to accommodate cultural diversity.1 At the same time, the issues described above show that human rights law – whether at international or national level – does not provide a final solution to all issues related to cultural diversity. While the ratification of treaties and the adoption of laws provide a sound legal basis, it is not always the only, best, or most effective way to address situations of cultural diversity, in particular the contentious ones. Other processes, including education, raising awareness and social development, which are also part of the broader advancement of human rights, are also important to address such cultural diversity situations. A good example of this, in my view, is the legal approach towards the wearing of facial coverage in several Western European States. In France and Belgium, legislation has passed banning such facial coverage in public buildings, public transport and 1

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For a more extensive argumentation of this proposition see my inaugural lecture, delivered on 29 June 2012, available at: www.oratiereeks.nl/upload/pdf/PDF-6449weboratie_Donders.pdf.

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educational and health institutions, and in the Netherlands similar legislation has been proposed. Although other forms of facial coverage are also legislated, these laws are primarily aimed at women wearing full body and face coverage. Such coverage is popularly referred to as a burqa, although it should be noted most women in Western Europe wear facial coverage in the form of a face veil. One of the reasons for these laws is that facial coverage would be an obstacle to open communication and participation and would not fit in a social order in which women have their own, equal position in public life. Furthermore, these laws aim to protect women, because it is argued that these women do not wear facial coverage out of their own choice, but are forced to do so by their relatives or by religious tradition. Addressing this issue from a human rights law perspective it could be asked whether such a limitation on freedom of religion is justified and how the balance would swing between freedom of religion and respect for private life and equality, or between the interests of the women and the interests of others and of society. A case against France on the criminalisation of facial coverage is currently pending before the European Court of Human Rights.2 The Court in earlier cases expressed a critical view on the wearing of headscarves, which it considered a practice that could not easily be reconciled with the Convention principles of tolerance, respect for others and equality and non-discrimination.3 It can therefore be predicted that the Court will most likely allow the ban. Apart from looking at whether the ban is violating international human rights law or not, in other words whether it is legally possible to have such a law, one could also look at this issue from another perspective, namely from the perspective of the role of law in relation to such cultural diversity questions. This question was addressed by the Dutch Council of State in its advice to the government on the proposed law. The Council concluded that the government aimed to solve a principal problem with legal means and asked two crucial questions: is there a principle problem and can and should this problem be solved by this law? The Council of State answered both questions in the negative. Its arguments were, in a nutshell: it cannot be assumed that women in the Netherlands are forced to wear facial coverage; feelings of safety are mainly subjective and cannot be a basis for a general prohibition; and the limitation of the freedom of religion does not meet a pressing social need and is not proportionate to the aim pursued.4 It concluded that this law would be too much of an exercise in light of the fact that the true problem is uncertain. And I would like to add that even if there were a problem, there are most likely other, more appropriate ways to address it.

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ECtHR, S.A.S. v. France (Appl.no. 43835/11), introduced 11 April 2011. ECtHR, Dahlab v. Switzerland (admissibility decision), 15 February 2001 (Appl.no. 42393/98) and Leyla Şahin v. Turkey (Grand Chamber), 10 November 2005, (Appl.no. 44774/98). Tweede Kamer der Staten-Generaal, Vergaderjaar 2011–2012, item 33 165, Instelling van een algemeen verbod op het dragen van gelaatsbedekkende kleding [Issuing a General Prohibition on Wearing Clothing that Covers the Face], nr. 4 Advies Raad van State en nader rapport, at pp. 2–6.

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Let us first try to unveil the problem. Many – often popular – premises are put forward in the societal debate on facial coverage, which form the background of these laws. Not all of these premises can be confirmed by facts, which is mainly caused by the fact that women wearing facial coverage are often left out of the debates and have not played a role in relation to the drafting of these laws. For instance, it is argued that women are forced to wear the face veil and that it is a confirmation of the inequality between men and women, more specifically the subordinate position of women. The question is whether this is true in Western European countries. Empirical studies were conducted in France, Belgium and the Netherlands on why women wear facial coverage and how a ban would be received by them.5 These studies show remarkably similar results. They confirm the broad absence of concrete figures on the number of women wearing facial coverage. In France, the number is around 1900, in Belgium around 250 and in the Netherlands around 400. Moreover, it became clear that most women do not always wear facial coverage, but do so occasionally. These figures are rather low to be creating a real ‘social problem’. A lot can be said about the reasons for women wearing facial coverage. The studies show, in any event, that the majority of women indicated that they were not forced at all by their husbands or family members to wear the face veil. It is more the opposite, husbands and family members discourage or disapprove of it. The studies further show no causal relationship between the wearing of a face veil and the neglect or oppression of women. Concerning participation in society, the studies show a broad range of personal situations among these women, whereby some of them work and do participate actively in society, while others chose not to do so. It should also be noted that there are a number of other groups in society that do not participate actively in social life for religious or other reasons and for them no laws are created. Of course, these studies were limited in the number of women interviewed. Some have therefore argued that the women participating in the studies are not representative and only concern a particular, perhaps emancipated, group of women wearing the face veil. Others have stated that these women were actually too afraid to tell the truth about them wearing a face veil. The studies were, however, carefully prepared and academically conducted and do not pretend to be more representative of the population than they actually are. Most importantly, they, for the first time, actively involve the women concerned, and the results are clear and strikingly similar. 5

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See: Human Rights Centre, Ghent University, Wearing the Face Veil in Belgium: Views and Experiences of 27 Women Living in Belgium concerning the Islamic Full Face Veil and the Belgian Ban on Face Covering, 1 June 2012, available at: www.ugent.be/re/publiekrecht/en/research/human-rights/faceveil. pdf (last accessed 28 September 2012); Open Society Foundations, Unveiling the Truth: Why 32 Muslim Women Wear the Full-face Veil in France, 2011, available at: www.soros.org/publications/unveilingtruth-why-32-muslim-women-wear-full-face-veil-france (last accessed 28  September 2012); Moors, A., Gezichtssluiers: Draagsters en Debatten [Face Veils: Wearers and Debates], Amsterdam School for Social Science Research, 31 January 2009, available at: www.e-quality.nl/assets/e-quality/dossiers/ Moslimas/Onderzoek%20Gezichtssluiers%20draagsters%20en%20debatten.pdf (last accessed 28 September 2012). Similar studies are currently conducted in the United Kingdom and in Denmark.

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Meanwhile, it should be emphasised that the women involved in these studies are certainly not representative for women all over the world wearing facial coverage. The studies concern several Western European countries and do not pretend to have any direct relevance on the situation of women wearing facial coverage elsewhere in the world. Indeed, there are countries where the wearing of facial coverage is not a free choice for the majority of women and where it is meant to underline the subordinate position of women. These situations, where women are forced to do something against their will or are prevented from participation in society, raise serious human rights concerns. But even in these situations, the legal approach may be a necessary, but certainly not the only approach to tackle the situation. In many countries, harmful cultural practices are prohibited by law, yet despite this, they continue. Law may be a useful instrument, but it cannot by itself change harmful cultural practices. In situations where women are forced to wear a face veil, it is questionable whether criminalising them has the desired effect. If women have to wear the face veil to confirm their subordination to men, a prohibition could be a powerful signal, but it seems better to address this issue by dialogue and education than by forcing people to change their views by law. Changes in cultural practices are most successful if they arise from within the cultural community itself and are not imposed from outside, by law or by the State. Cultures are not static. Change is possible and human rights can in fact be instrumental in such change. The handling of human rights and cultural diversity therefore requires a multidimensional approach, in terms of instruments and in terms of actors. Apart from legislation, human rights policies and measures in the field of education and social development should be taken. The preparation and implementation of such laws and policies should not only involve state authorities, but as much as possible, the cultural communities concerned as well. Cultural communities have an important responsibility. Human rights and cultural diversity require mutual respect: the reception of cultural diversity can only take place in a context in which the cultural community involved shows respect for human rights. Cultural communities may have a certain amount of freedom to arrange their internal structure and institutions, but they should always guarantee and respect the rights and freedoms of their individual members, including, for instance, the right to take part in the decisionmaking processes that determine and develop the community’s culture, as well as the right and freedom to leave the community. They should also respect the rights of their members to participate in society at large, for example through education, election processes and labour. Human rights and cultural diversity are too complex and too dynamic to be dealt with by law and by the State alone. At the same time, their importance for individuals, communities and society makes this relationship too hot not to handle.

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