Pejorative Assertions, Human Rights Evaluation, and European Veiling Laws

Abstract

An increasing number of European states have, since 2009, passed laws restricting or prohibiting the practice of Islamic veiling. These laws have been challenged both before the European Court of Human Rights and the United Nations Human Rights Committee. In the former context, these laws have invariably been upheld whereas in the latter, they have always been deemed to be incompatible with the right to freedom of religion under the International Covenant on Civil and Political Rights. Superficial analysis suggests that this is because the ECtHR, unlike the UNHRC, applies a margin of appreciation doctrine to give effect to concerns with subsidiarity. In this Article it is suggested that the better explanation is that the ECtHR (again unlike the UNHRC) accepts assertions of facts from states as to why their laws are justified in the absence of any demonstrable supporting evidence. It is argued that this is of particular concern because these assertions tend to make insidious and pejorative statements about the practice of Islamic veiling that have the capacity to generate stigma and substantive damage for the veil wearing woman. When they are endorsed by a putatively independent body like the ECtHR, these messages, and the accompanying stigma are mainstreamed and legitimized. It is finally argued that this means that the approach of the ECtHR cannot be justified by concerns with subsidiarity but rather reflects an irresponsible abdication of responsibility.