France’s highest administrative court, the Conseil d’Ìätat, has today suspended the controversial “burkini ban” in one French town, ruling that it contravened fundamental liberties and even went as far to say that it was illegal. Whilst the bans, which are in place in several French seaside towns, have caused an uproar in the international press, 64% of French people are said to be in favour of outlawing the burkini. The ruling is to be welcomed, but the future still looks bleak as mayors of other French towns along with presidential hopeful, Nicolas Sarkozy, continue to reiterate their support for the bans.
The main justification offered by French authorities for the ban is that the burkini (a form of swimwear similar in appearance to a wetsuit) poses a risk to public order, being a symbol of terror and Islamic fundamentalism. This justification hangs in the backdrop of the French principle of ‘laÌøcitÌ©’ or secularism which dictates that state and religion should remain separate. However, laÌøcitÌ© is meant to promote freedom of thought and freedom of religion, principles which are hard to relate to forbidding Muslim women from exercising their right to practice modesty whether in the name of religion or otherwise.
Manuel Valls, the French Prime Minister has gone so far as to say that the burkini represents the ‘enslavement of women’ a statement which is difficult to digest when we think of the harrowing images we have seen this week of French police officers oppressing a woman by subjecting her to fines and threatening her with pepper spray until she removed specific items of clothing (none of which were the burkini garment).
Whilst it is easy to get carried away in the feminist and common sense arguments against the burkini ban (and believe me I am guilty of doing just that), let’s take a look at a few of the legal arguments against the ban:-
- The governing and dictation of women’s clothing amounts to a violation of human rights. The ban does seem to contravene a number of articles of the European Convention on Human Rights (ECHR), specifically Article 9, safeguarding freedom of thought, conscience and religion, along with Article 10, which protects freedom of expression.
- The ban amounts to the ‘collective punishment’ of Muslims for terror attacks supposedly committed by so-called ISIL. Collective punishment is a norm of customary international law i.e. established by state practice. It means that no one may be subject to sanctions or harassment of any sort except on the basis of individual criminal responsibility. Whilst the Conseil d’Ìätat did not go so far as to hold that the ban violated this principle, it is clear that Muslim women are to some extent being held accountable for the actions of others.
- Discrimination. The ban is clearly arbitrary in that it treats Muslim women differently to other French beach-goers who are permitted to opt for more coverage in the form of wetsuits for diving or long-sleeved tops to prevent sunburn. French authorities have justified this difference in treatment on the basis of the threat posed by Islamic extremism. However, the UN Human Rights Committee has stated that States parties may ‘in no circumstances’ invoke a state of emergency ‘as justification for acting in violation of humanitarian law or peremptory norms of international law’.
It should be remembered that today’s ruling has only suspended the ban in one French town, Villeneuve-Loubet, whether the ruling will set a precedent for other towns remains to be seen.
France’s highest administrative court has ruled that ‘burkini bans’ being enforced on the country’s beaches are illegal and a violation of fundamental liberties.