Europe is well-established as a land of diverse cultures; it is unique in its shared history and rich diversity. Yet beneath its idyllic landscapes lies a brutal struggle. It is no secret that the continent has wrestled with its stance on religious expression for decades, even making mainstream headlines as recently as March in France and Switzerland. With contention largely focused on Islamic dress, this has developed into an identity struggle for both Muslims and proponents of hard-line legislation. With the European Court of Human Rights (ECtHR), and domestic courts, drawing a line in the sand, social consensus still seems far off.

BANS ON ISLAMIC DRESS

In various European states, legislation has been passed prohibiting the wearing of Islamic dress in public. This includes the Hijab, Niqab, or Burqa. Those states include the Netherlands, Denmark, Austria, Bulgaria, Belgium, France, and Switzerland—although there are similar debates occurring in Estonia, Latvia, Lithuania, Norway, and Spain. If one breaches these regulations, heavy fines are to be expected as a consequence. For example, in Bulgaria there exists a fine of 750 EUR and in Belgium, home to almost one million Muslims, the parliament unanimously voted for a ban in 2011 that could even lead to prison time.

Whilst public backing for full-face veil bans may be rising in some states, the jury is out on pan-European consensus. The United Kingdom, for example, has seen a steady decline for any kind of similar policy. Although it is well recorded that public opinion on the matter tends to fluctuate depending on the rhetoric of prominent politicians of the day, whether liberal or populist. As such, with much of Europe’s record on contested issues, states remain divided regarding the implementation of regulations on Islamic dress.    

THE RISE OF NATIONALISM

Nationalism has permeated Europe’s political scene for decades, but in recent years there has been a spike in right-wing populist party support. Ascertaining exactly why this is calls for nuanced discussion, but the rise can largely be attributed to political disenfranchisement. Deep-rooted concerns about the development of globalism, increased migration, and a broken European Union have resulted in social frustration. For many populist voters, their feelings of disillusionment have entered the mainstream—and this extends to questions of national identity.

Marine Le Pen’s Rassemblement National, Geert Wilders’ Partij voor de Vrijheid, and Alice Weidel’s Alternative für Deutschland, to name just a few, have discovered political expediency in criticism of Islamic dress. Their success can often be attributed to black and white pronouncements on what it “means” to be French, Dutch, or German respectively—at least, in their opinions.

Their rhetoric often pines for a return to a mythical land whereby national values are upheld and honoured. It is often argued by supporters of such movements that Islam, and particularly the manifestation of the religion, is incompatible with modern Western life. In particular, they say, the full-face veil is not conducive to this vision of a tranquil, integrated society.

THE STANCE OF THE ECtHR

Certain courts such as the ECtHR seem to agree with such ideas. In landmark cases which have made it to the ECtHR, the court has found that there is legal justification for national bans on full-face veils. In SAS v. France, the court stated:

The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier. (para. 122)

Unequivocal about its stance, in future judgements it reaffirms its arguments such as via Belgium’s ban in 2017, labelling such practices as incompatible with Belgian society.

These judgements seem an insult to many. Statistically, a very small percentage of European Muslims actually wear full-face veils. It therefore seems like a largely symbolic finding rather than one in defence of personal liberties. However, perhaps most controversially, the court made a conscious decision to agree these limitations on the freedom of religion were justifiable.

Individual liberties are what make us human; they are rights bestowed to us upon birth and safeguard us from mistreatment, state oppression, and indignity. Qualified rights, under which religious expression falls, should be suspended only under the most serious threats to public safety. These rights are enshrined in international covenants and are designed to ensure that the suspension of “worship, observance, practice and teaching” occurs only in dire circumstances.

It appears that when it comes to religious manifestation, the ECtHR deems individual freedoms of minorities second-class to the pursuit of greater social cohesion. It carries a clear insinuation and reinforces the notion that full-face coverings are a barrier, rather than an asset, to achieving the aim of integration and collective harmony. The irony should not be lost, of course, in that of the fraction of Muslims who do wear full-face veils, many are European converts and are thus already fully integrated in the European community.

CONTRADICTION IN EUROPEAN VALUES

Despite the rulings of the ECtHR, the United Nations Human Rights Committee (UNHRC)—the monitoring body of the International Covenant on Civil and Political Rights—concluded in 2019 the very opposite of the ECtHR’s findings. The same has occurred with many international legal-activist NGOs. For example, movements like “HeForShe” along with trends such as #MyDressMyChoice have thrust opposition to the ECtHR’s judgement into the mainstream. Some governments have expressly denounced the concept of a ban too; the UK government has previously stated that a French-style ban on full-face veils clashes with traditional British values and is undesirably "unBritish".

There seems to be a gross contradiction in the way some European states defend individual liberties. On the one hand, the continent proclaims itself a bastion free from unnecessary state-interference. A corner of the world where the freedom to express oneself is deeply valued and encouraged. Yet, in the same vein, those same actors—the Angela Merkels and Ursula von der Leyens—can be seen supporting radical restrictions to those very freedoms.

In some instances, it is naturally right to implement suspension of liberties for the purposes of public safety, but on matter of principle it seems unethical and disproportionate for such a blanket ban to be deemed necessary. The law, in many European nations, now dictates what women can choose to wear; a far cry from the female empowerment and social harmony the courts attempted to seek.

Even those who support such measures must recognise that hindering the right of an individual to peacefully practice their religion, whatever their faith, is not a flattering look for such a purportedly liberal land as Europe. Perhaps a more effective means to create a harmonious population would be to actively embrace our diversity under a spirit of public tolerance and acceptance, rather than proscribe in law that which is different.

James Reynolds is a dual-scholar of the Honourable Society of the Inner Temple & final year LLB student at Royal Holloway, University of London. Committed to training for the Bar of England & Wales, he has been accepted to study for an LLM BPC in London Bloomsbury. He hopes to apply his learned experiences from the Netherlands, European Parliament and as a student legal advisor in the UK to assist in the defence of individual liberties and human rights.

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