Europe
Universal or Regional Human Rights? France, Sikhs, and Freedom of Religion
A group of Sikhs praying
by Pablo Contreras
The Human Rights Committee (HRC) has recently revealed an important decision against France: a “regulation requiring persons to appear bareheaded in the identity photographs used on their residence permits” and, thus, prohibiting the use of a Sikh turban under those circumstances, constitutes a violation of a person’s freedom of religion (Singh v. France, Comm. No. 1876/2000). In Singh, the HRC held that freedom of religion encompasses the right to wear distinctive religious clothing (following its General Comment No. 22) and concluded that France did not justify why the prohibition was necessary and proportional to protect public safety and order.
The decision is particularly important not only for its substantive merits but also for its major implications in terms of the scope and extension of individual liberties under an international human rights treaty –such as the International Covenant on Civil and Political Rights (ICCPR)– and a regional one –like the European Convention on Human Rights (ECHR)–. With different enforcement bodies –the HRC and the European Court of Human Rights (ECtHR), respectively– the potential discrepancy on rights’ interpretation has become now a reality.
The recent case shows a more strict international supervision in the protection of religious rights, without any deference to national authorities. In stark contrast, the ECtHR has developed a “margin of appreciation” doctrine that grants considerable latitude to domestic bodies to restrict and to limit fundamental rights. The ECtHR has relied on this particular doctrine especially when there is no regional consensus among European states. Cases relating to the display of religious symbols in public schools (Lautsi v. Italy) or the use of the Islamic veil in public places (Sahin v. Turkey) have been among the most impactful situations where the margin of appreciation doctrine has been employed by courts to defer to domestic decisions.
Concerning the restriction on the use of Sikhs turbans, the ECtHR has only declared inadmissible one particular communication (Shingara Mann Singh v. France), but it has not yet addressed the issue on its merits. On the other hand, the HRC has confirmed its jurisprudence on freedom of religion (Hudoyberganova v. Uzbekistan) and tends to apply a more “universal” standard in reviewing rights’ restrictive measures and their proportionality. Therefore, it has protected freedom of religion without any reference to the practice of state parties to the ICCPR or their moral consensus.
Even though Sikhs around the world applauded the HRC decision, it is yet to see what will actually happen with its enforcement. More problematic, though, are the real practical issues in the definition and protection of similar rights established both under the ICCPR and the ECHR. Certain level of coordination or normative convergence between the jurisprudence of the HRC and the ECtHR would be desirable. The firm margin of appreciation doctrine, however, conspires against it.
The Human Rights Committee (HRC) has recently revealed an important decision against France: a “regulation requiring persons to appear bareheaded in the identity photographs used on their residence permits” and, thus, prohibiting the use of a Sikh turban under those circumstances, constitutes a violation of a person’s freedom of religion (Singh v. France, Comm. No. 1876/2000). In Singh, the HRC held that freedom of religion encompasses the right to wear distinctive religious clothing (following its General Comment No. 22) and concluded that France did not justify why the prohibition was necessary and proportional to protect public safety and order.
The decision is particularly important not only for its substantive merits but also for its major implications in terms of the scope and extension of individual liberties under an international human rights treaty –such as the International Covenant on Civil and Political Rights (ICCPR)– and a regional one –like the European Convention on Human Rights (ECHR)–. With different enforcement bodies –the HRC and the European Court of Human Rights (ECtHR), respectively– the potential discrepancy on rights’ interpretation has become now a reality.
The recent case shows a more strict international supervision in the protection of religious rights, without any deference to national authorities. In stark contrast, the ECtHR has developed a “margin of appreciation” doctrine that grants considerable latitude to domestic bodies to restrict and to limit fundamental rights. The ECtHR has relied on this particular doctrine especially when there is no regional consensus among European states. Cases relating to the display of religious symbols in public schools (Lautsi v. Italy) or the use of the Islamic veil in public places (Sahin v. Turkey) have been among the most impactful situations where the margin of appreciation doctrine has been employed by courts to defer to domestic decisions.
Concerning the restriction on the use of Sikhs turbans, the ECtHR has only declared inadmissible one particular communication (Shingara Mann Singh v. France), but it has not yet addressed the issue on its merits. On the other hand, the HRC has confirmed its jurisprudence on freedom of religion (Hudoyberganova v. Uzbekistan) and tends to apply a more “universal” standard in reviewing rights’ restrictive measures and their proportionality. Therefore, it has protected freedom of religion without any reference to the practice of state parties to the ICCPR or their moral consensus.
Even though Sikhs around the world applauded the HRC decision, it is yet to see what will actually happen with its enforcement. More problematic, though, are the real practical issues in the definition and protection of similar rights established both under the ICCPR and the ECHR. Certain level of coordination or normative convergence between the jurisprudence of the HRC and the ECtHR would be desirable. The firm margin of appreciation doctrine, however, conspires against it.