Comparative Analysis of German, French and American Human Rights Law - Essay Example

?Veiled Truths: Comparative Analysis of German, French and American Human Rights Law The crucial importance of political rights and liberties in today’s evolving and fast-changing world cannot be overemphasized. It has been opined that political rights and liberties are of paramount importance because of their impact on other rights, such as social and economic rights. The universal condemnation of state-sponsored repression is due in large part to the globalized ideal of human rights1 where we see a whittling down of the concept of sovereignty in favor of the acceptance of international norms of human rights. Indeed, the protection of human rights is one of the fundamental aspirations of international law. To quote from Hersch Lauterpacht, in his article International Law and Human Rights, An international legal system which aims at effectively safeguarding human freedom in all its aspects is no longer an abstraction. It is as real as man’s interest in the guarantee and the preservation of his inalienable rights as a rational and moral being. International law, which has excelled in punctilious insistence on the respect owed by one sovereign State to another, henceforth acknowledges the sovereignty of man. For fundamental human rights are superior to the law of the sovereign State2. In international law, the primacy of the State is the core principle of the international legal regime as it is traditionally known. It is the duty of international law, therefore, to interlock authority with power, and to ensure that authorized decision-makers regulate the actions of States. When the United Nations was created in 1948 by a world still reeling from the ravages of the Second World War and intent on healing the wounds wrought by it, it was tasked to become the primary agency in defining and advancing human rights. From then on, various other agencies were created, addressing specific human rights concerns. Notable examples of this are the International Labor Organization and the UNICEF. Within the jurisdiction of the individual states, however, human rights legislation evolves mainly as a result of case law, i.e., the jurisprudence based on decisions made by the Supreme Court on human rights disputes brought before it. Indeed, Indeed, society has come a long way towards preserving human rights, and righting the wrongs of the past with justice and accountability. Says Abrams and Ratner3: Societies long reluctant to investigate or prosecute human rights abusers have begun to do so with greater frequency. These include both those inquiring into the abuses of their own officials or former officials, as well as those investigating or prosecuting individuals who have committed abuses in other countries. This paper attempts to trace the role that case law has played in the legal systems of Germany, France and the United States with respect to the development and evolution of human rights. This paper shall also look into some of the more important and landmark decisions made in the respective jurisdictions and evaluate the degree to which these decisions have impacted on human rights. As the space for this paper is rather limited and the field of human rights is vast, this paper will focus on human rights law as it applies to freedom of religion and circumstances when it competes with the interests of the state to preserve certain values, e.g., neutrality and national security. Germany When people think of Germany and human rights law and religion, thoughts inevitably first turn to the end of the second world war, where Nazi soldiers had been prosecuted for gross war crimes committed against the Jews. The end of World War II ushered in a milestone for international criminal responsibility. The axis powers were completely annihilated and the allied powers were now determined not to repeat the mistakes of the past. It was only through punishing the guilty that the horrors and wounds of the victims could be assuaged. The allied states created the International Military Tribunal (IMT) for the prosecution of the men behind the Holocaust, those who orchestrated the widespread slaughter of Jews in concentration camps. This came to be known as the Nuremberg Tribunal Prior to these, the concept of crimes against humanity was unheard-of, though it was perhaps the only apt way of describing the wholesale, systematic and systemic annihilation of Jews during the time of the Holocaust. In more recent developments, Germany has also refined its human rights framework, and this is no small part because of its case law. One very recent example is what is widely known as the “headscarf case”, which was decided upon by the German Federal Constitutional Court4. Mahlmann5 summarized the crux of the issue in this wise: For a Muslim woman applying for a teaching position at a German public school who feels committed to abide by the rules of religious tradition, wherever its source may lie, by wearing a head scarf and who is otherwise qualified for the position the question arises inevitably: Is it part of the qualification of a teacher to be prepared not to wear a head-scarf? There are many issues that come into play. Germany is a pluralistic society and is constrained to maintain neutrality where religious beliefs are concerned. Religious freedom was also considered a major bone of contention: certainly, the female teacher involved (German by citizenship, Afghan by birth) had the right to exercise her religious beliefs, in this case her Islamic faith. However, the students of the school also had a right not to be subjected to symbols of religious faith that they do not necessarily share. In fact, in a case that was cited in the discussion of this one, the Court had ruled in favour of parents who demanded that a crucifix (a symbol of Christian faith) be taken down from a classroom in order that the neutrality of the state be preserved.6 Weighing these grave considerations and balancing the competing interests, the Court found that considering the essential nature of the issue at hand, a statute was legally indispensable in imposing the prohibition against wearing a headscarf in the classroom. Drawing from the well-established German doctrine called Wesentlichkeitstheorie, the Court held that for matters that are relevant for the exercise of a citizen’s fundamental rights, a legislative act is of absolute necessity7. In a scathing dissenting opinion to the main decision, the dissenters opined that when a citizen becomes a civil servant and therefore enters the sphere of the State, the right to assert fundamental freedoms against the State is not as absolute as that granted to the ordinary citizen. The civil servant cannot therefore assert his or her right in the face of the executive exercising the general will of the legislature. This issue is emblematic of the growing tensions between Islam and the Western world, and the preconceived notions and ideas that those in the Western world may have on the Islamic faith and tradition. This appears to confirm Fanon’s view on racism, which looks at the concept from a cultural perspective, the “systematized oppression of a people” that is embedded in structure and is not targeted towards “the individual man but to a certain form of existing.”8. What does this mean? Fanon asserts that racism has undergone an evolution, a mutation if you will, that seeks to justify or rationalize itself by appealing to the superiority of one way of life or thinking against the other. Fanon gives us the example of the famous phrase “cross against the crescent”, which is suggestive of the superiority of Occidental Christian culture over Islamic culture. Indeed, it is interesting to note that in the dissenting opinion, the judges opined that a crucifix may be acceptable because it is a sign of a culture, and not of religion and that a headscarf is a symbol of women’s subordination to men. Whilst the case was being heard, many were expecting that the Court would either rule in favour of the woman’s right to wear a headscarf, or the school’s right to ban it: indeed, the ruling that the banning of headscarf must be done by legislative fiat came as a surprise to many. Those who feel however that the court had shied away from making a definitive ruling missed out on two important points the court had made: first, the court had recognized the absence of empirical evidence proving that the wearing of head scarves by teachers had negative effects on children and second, that there was a difference between the state allowing its personnel the right to exercise their religion, as diverse as it may be, and the state actively endorsing a particular religion, the latter being a violation of the rule on state neutrality. France In France, the state has been comparatively more resolute in its ban of headscarfs, with its legislature passing a law that took effect in 2011 prohibiting the wearing of veils that fully covered the faces. But as early as 2004, France had already banned headscarves from state primary and secondary schools by passing a law that prohibited conspicuous religious symbols. The French National Assembly voted overwhelmingly in favour of the bill (494 to 36) and the Senate voting 276 to 20, passed the bill into law. There were many of those who protested against the law, feeling that Muslim women who wear veils are particularly targeted even though the law also coverse Jewish caps and big Christian crosses. The law was an amendment9 to the existing law, the Law on Secularity (la loi sur la laicite). In explaining the French mindset, Kemeni10 states: French law gives preference to a greater measure of collective equality – and subsequently religious neutrality – over what is oft considered a most basic of individual rights: freedom of religious expression. The French ideal of laicite, or secularity, flies in the face of the American conception of freedom of religion. Standing in stark contrast to American beliefs about the separation of Church and State valuing government nonintervention in religious matters, French law is more concerned rather with the prevention of religious intrusion in the dealings of the state. This concern is legitimized by France’s past, which is rife with outbursts of religiously motivated violence, most notably the sixteenth century’s bloody Wars of Religion.  This puts an interesting angle to the issue at hand and brings in a historical perspective to the legal and political discourse. We se ehow law evolves as outcomes of values that particular societies deem to be important, and the value upheld here by the French state is the value of secularism – distilled from a painful and bloody history of religious oppression. There are also those who argue that religious tolerance is in fact being celebrated by the Burqa ban and that banning these religious symbols in fact help protect the women who wear them on the premise that they wear the burqa under duress. This then begs the question: what about those women who feel that the burka is a legitimate expression of their identity and these laws form an undue restriction on this expression, which should be – as they assert – constitutionally protected? In fact in April of 2011, two women were arrested for wearing a burka during public protests in Paris, the nation’s capital. In research undertaken on women Muslims by Killian11, the opinions on the law were diverse and conflicting. Some had argued that the law in question was particularly designed to target Muslims, repeating the “us versus them” rhetoric often repeated by critics of Western views of the east. Those who are in support of the ban cite that wearing of the veil is voluntary not mandatory, and likewise, the veil is representative of the patriarchal structures in Islam that they deem to be anachronistic and oppressive to women. What is clear is that there is no consensus on the subject matter, even from Muslim women themselves who are directly affected by the ban. As a last point of discussion, the French debate on the wearing of the burka also appears to be a conflict between assimilation and integration12 (which are values that the French government stresses as it justifies and implements the ban) and holding on to Islamic identity. According to Barth, “The identification of another person as a fellow member of an ethnic group…entails the assumption that the two are fundamentally ‘playing the same game’”13. The United States Now we turn to the United States and a very interesting case to look into is the case of Myke Freeman v. State of Florida14. This case involves an American convert to Islam, Sultaana Freedman, who wears a full-face niqab in light of her religious belief that she must not show her face to men outside her family. She wore this when she had her driver’s license picture taken. However, due to the spate of terrorist attacks, she was written to by the Florida Department of Highway Safety and Motor Vehicles, requesting her to retake her drivers’ license photograph with her full face exposed. When she refused, her license was revoked. In her suit against the Department, she argued that the revocation of her license upon her refusal to remove her niqab for the license picture violated her religious freedom guaranteed in the constitution, and that there was likewise a violation of the “Religious Freedom Restoration Act of Florida 1988”. Section 761.03 of the said law reads: (1) The government shall not substantially  burden  a  person’s  exercise of religion even  if the burden results  from a rule of general applicability, except that government may substantially  burden  a person’s exercise of religion  only  if it demonstrates  that application  of the burden to  the  person: (a) Is in furtherance of a compelling governmental interest? and  (b) Is  the least restrictive means of furthering  that compelling governmental interest. In its ruling, the court held that the State was forwarding a compelling governmental interest when it effectively ordered that the plaintiff cannot be given a license if she was unable to show her full face before the camera, even if showing her full face was against her religious beliefs. National security was cited as a legitimate interest of the State and whilst the court did not question the sincerity of Freedman’s religious beliefs and did not touch upon the validity of these beliefs, it made a clear ruling that national security interests trump the individual’s right to the exercise of religious freedom. The State offered to arrange for Freedman’s picture to be taken in a room with no males, but she did not take it up on its offer. This must be contrasted with the case of Francis Quaring15, who was a Pentecostal Christian and was allowed to drive with a license card that bears no picture on the ground that being photographed was against the tenets of his religion. He cited the second commandment (Exodus 20:4) in the Holy Bible, which reads: “Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is  on  the  earth below, or that is  in  the water under the  earth” Summary and Reflections A perusal of this brief sweep of case law in Germany, France and the United States where religious freedom in general, and the right to wear burqas and other forms of headscarves in particular, was discussed reveals some insights. The first is that it is impossible to arrive at a consensus on what value should be upheld, given the competing values of religious freedom and the right of the state to promote or uphold interests it deems important (e.g., secularism, neutrality, gender equality). WE have seen how even amongst the Muslim women, they were not able to come up with a solid position on the issue. The second is that values are never static, they mean different things to different people. For example, some women feel that the burqa or the veil is an assertion of their right as women. Some, on the other hand, feel that it is an imposition and that women are better off without them. The third and perhaps the most important point is that laws are never created in vacuums – they are outcomes of the contexts and societies that created them. They evolve, mutate and transform over time. Word count: 2941 References Abrams J., Ratner, S. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (OUP, 2001), 1-25, 160-227. Barth, Fredrik. Ethnic Groups and Boundaries. Waveland Press: Long Grove, Illinois 1969. Beller, Elisa T. “The Headscarf Affair: The Conseil d’Etat on the Role of Religion and Culture in French Society.” Texas International Law Journal 39.4 (2004): 581. Fanon, Frantz. (1967). “Racism and Culture” in Towards the African Revolution. Pp. 31-34. Kemeni, Kris. “The Unveiling: France’s Headscarf Affair.” October 2008. University of Southern California. Available at http://angelingo.usc.edu/index.php/politics/the-unveiling-frances-headscarf-affair/ Killian, Caitlin. “The Other Side of the Veil: North African Women in France Respond to the Headscarf Affair.” Gender & Society 17.4 (2003): 567-590. Lauterpacht, Hersch. 1950. International Law and Human Rights. Connecticut: Archon Books. Mahlmann, M. 2003. “Religious Tolerance, Pluralist Society and the Neutrality of the State: The Federal Constitutional Court’s Decision in the Headscarf Case”, German Law Journal, 4  Steiner & Alston, International Human Rights in Context, 2nd ed. (Oxford University Press, 2000) Read More