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COLUMN
HUMAN RIGHTS AND CULTURAL
DIVERSITY: TOO HOT TO HANDLE?
Yvonne Donders
It is widely agreed that human rights and cultural diversity have a mutually
interdependent and beneficial relationship. Many human rights, such as the rights to
freedom of expression, freedom of religion, freedom of assembly, as well as the rights
to take part in cultural life and to education, play a direct role in the promotion and
protection of cultural diversity. At the same time, the enjoyment of human rights is
promoted by a pluralistic society. The Universal Declaration on Cultural Diversity,
adopted by the Member States of UNESCO in 2001 provides that ‘the defence of
cultural diversity is…inseparable from respect for human dignity’ and ‘implies a
commitment to human rights and fundamental freedoms’. The UNESCO Convention
on the Protection and Promotion of the Diversity of Cultural Expressions (2005)
states that ‘cultural diversity can be protected and promoted only if human rights and
fundamental freedoms…are guaranteed’.
The manner in which this relationship works out in practice is, however, often
the subject of heated debates at national and international level. These debates often
centre around religious issues. Recently, for instance, portrayals of the prophet
Mohammed in a fi lm and in cartoons and the violent protests by Muslims stirred
up the discussion on the possible conflict between freedom of expression and
freedom of religion. Another current example is the debate on the (proposed) ban on
wearing facial coverage in several Western European States, which was preceded by
similar discussions about students and teachers wearing religious symbols, such as
headscarves, turbans and kippas in public schools. In Germany, passionate debates
took place on male circumcision after a German Court ruled that this religious
practice amounted to bodily harm.
Cultural diversity is of course broader than religion and its relationship and
interaction with human rights may raise many other hot topics. In the Netherlands, for
instance, ardent discussion has taken place on whether double nationality could lead
to a lack of Dutch identity and loyalty, and on whether the celebration of ‘Sinterklaas’
should be acknowledged as intangible Dutch cultural heritage or be dismissed
as a racist festivity. Other possible issues include the use of minority languages in
court, education in minority languages, the recognition of non-formal marriage and
divorce rituals, and land rights for indigenous communities in relation to economic
development. The reason debates on these issues are often heated and polarised is
Netherlands Quarterly of Human Rights, Vol. 30/4, 377–381, 2012.
© Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.
377
Column
because they concern expressions of the culture, identity and dignity of individuals
and communities. Their link with human rights may raise a potential conflict between
rights, or involve limitations of rights to protect certain groups or society.
One of the main challenges in the analysis of the relationship and interaction
between cultural diversity and human rights is formed by the dynamic and complex
notion underlying cultural diversity: the concept of ‘culture’. Apart from the
abundance of definitions of ‘culture’, it is a concept with a dynamic and changeable
character, being not only a product but also a process. It has an objective dimension,
reflected in visible characteristics such as language, religion, or customs, and a
subjective dimension, reflected in shared attitudes, ways of thinking, feeling and
acting. It also has both an individual and a collective dimension.
While culture is generally considered to be important to human beings and to
communities, at the same time it is not an abstract or neutral concept, and it may be
a mechanism for exclusion and control. Some harmful aspects of culture are reflected
in cultural practices that are very questionable from a human rights perspective. Thus,
an important question is: who decides to what extent cultural diversity should be
promoted and which cultural aspects should be protected? As cultures are dynamic,
which interpretation of a certain cultural practice or activity should be accepted and
who has the authority to carry out such an interpretation? These questions demonstrate
that the breadth, complexity and sensitivity of cultural diversity are serious challenges
to the integration of this concept into human rights law.
One may wonder whether the human rights framework, and in particular the
legal human rights framework, is suitable for the accommodation of cultural diversity
and the large variety of issues that it brings. Is law not too static to accommodate
the complexity and dynamics of cultural diversity? Are the necessary clarity and
consistency of the law reconcilable with the flexibility necessary to accommodate
cultural diversity? Focusing on international human rights law, I have argued that this
system, including its standards and supervisory mechanisms, is flexible enough to
accommodate cultural diversity.1 At the same time, the issues described above show
that human rights law – whether at international or national level – does not provide
a final solution to all issues related to cultural diversity. While the ratification of
treaties and the adoption of laws provide a sound legal basis, it is not always the only,
best, or most effective way to address situations of cultural diversity, in particular the
contentious ones. Other processes, including education, raising awareness and social
development, which are also part of the broader advancement of human rights, are
also important to address such cultural diversity situations.
A good example of this, in my view, is the legal approach towards the wearing of
facial coverage in several Western European States. In France and Belgium, legislation
has passed banning such facial coverage in public buildings, public transport and
1
378
For a more extensive argumentation of this proposition see my inaugural lecture, delivered on
29 June 2012, available at: www.oratiereeks.nl/upload/pdf/PDF-6449weboratie_Donders.pdf.
Intersentia
Column
educational and health institutions, and in the Netherlands similar legislation has
been proposed. Although other forms of facial coverage are also legislated, these laws
are primarily aimed at women wearing full body and face coverage. Such coverage is
popularly referred to as a burqa, although it should be noted most women in Western
Europe wear facial coverage in the form of a face veil.
One of the reasons for these laws is that facial coverage would be an obstacle to
open communication and participation and would not fit in a social order in which
women have their own, equal position in public life. Furthermore, these laws aim to
protect women, because it is argued that these women do not wear facial coverage out
of their own choice, but are forced to do so by their relatives or by religious tradition.
Addressing this issue from a human rights law perspective it could be asked whether
such a limitation on freedom of religion is justified and how the balance would swing
between freedom of religion and respect for private life and equality, or between the
interests of the women and the interests of others and of society. A case against France
on the criminalisation of facial coverage is currently pending before the European
Court of Human Rights.2 The Court in earlier cases expressed a critical view on
the wearing of headscarves, which it considered a practice that could not easily be
reconciled with the Convention principles of tolerance, respect for others and equality
and non-discrimination.3 It can therefore be predicted that the Court will most likely
allow the ban.
Apart from looking at whether the ban is violating international human rights law
or not, in other words whether it is legally possible to have such a law, one could also
look at this issue from another perspective, namely from the perspective of the role
of law in relation to such cultural diversity questions. This question was addressed
by the Dutch Council of State in its advice to the government on the proposed law.
The Council concluded that the government aimed to solve a principal problem with
legal means and asked two crucial questions: is there a principle problem and can
and should this problem be solved by this law? The Council of State answered both
questions in the negative. Its arguments were, in a nutshell: it cannot be assumed that
women in the Netherlands are forced to wear facial coverage; feelings of safety are
mainly subjective and cannot be a basis for a general prohibition; and the limitation of
the freedom of religion does not meet a pressing social need and is not proportionate
to the aim pursued.4 It concluded that this law would be too much of an exercise in
light of the fact that the true problem is uncertain. And I would like to add that even if
there were a problem, there are most likely other, more appropriate ways to address it.
2
3
4
ECtHR, S.A.S. v. France (Appl.no. 43835/11), introduced 11 April 2011.
ECtHR, Dahlab v. Switzerland (admissibility decision), 15 February 2001 (Appl.no. 42393/98) and
Leyla Şahin v. Turkey (Grand Chamber), 10 November 2005, (Appl.no. 44774/98).
Tweede Kamer der Staten-Generaal, Vergaderjaar 2011–2012, item 33 165, Instelling van een
algemeen verbod op het dragen van gelaatsbedekkende kleding [Issuing a General Prohibition on
Wearing Clothing that Covers the Face], nr. 4 Advies Raad van State en nader rapport, at pp. 2–6.
Netherlands Quarterly of Human Rights, Vol. 30/4 (2012)
379
Column
Let us first try to unveil the problem. Many – often popular – premises are put forward
in the societal debate on facial coverage, which form the background of these laws.
Not all of these premises can be confirmed by facts, which is mainly caused by the
fact that women wearing facial coverage are often left out of the debates and have not
played a role in relation to the draft ing of these laws. For instance, it is argued that
women are forced to wear the face veil and that it is a confirmation of the inequality
between men and women, more specifically the subordinate position of women. The
question is whether this is true in Western European countries. Empirical studies
were conducted in France, Belgium and the Netherlands on why women wear facial
coverage and how a ban would be received by them.5 These studies show remarkably
similar results. They confirm the broad absence of concrete figures on the number of
women wearing facial coverage. In France, the number is around 1900, in Belgium
around 250 and in the Netherlands around 400. Moreover, it became clear that most
women do not always wear facial coverage, but do so occasionally. These figures are
rather low to be creating a real ‘social problem’.
A lot can be said about the reasons for women wearing facial coverage. The studies
show, in any event, that the majority of women indicated that they were not forced at
all by their husbands or family members to wear the face veil. It is more the opposite,
husbands and family members discourage or disapprove of it. The studies further
show no causal relationship between the wearing of a face veil and the neglect or
oppression of women. Concerning participation in society, the studies show a broad
range of personal situations among these women, whereby some of them work and do
participate actively in society, while others chose not to do so. It should also be noted
that there are a number of other groups in society that do not participate actively in
social life for religious or other reasons and for them no laws are created.
Of course, these studies were limited in the number of women interviewed.
Some have therefore argued that the women participating in the studies are not
representative and only concern a particular, perhaps emancipated, group of women
wearing the face veil. Others have stated that these women were actually too afraid
to tell the truth about them wearing a face veil. The studies were, however, carefully
prepared and academically conducted and do not pretend to be more representative
of the population than they actually are. Most importantly, they, for the first time,
actively involve the women concerned, and the results are clear and strikingly similar.
5
380
See: Human Rights Centre, Ghent University, Wearing the Face Veil in Belgium: Views and Experiences
of 27 Women Living in Belgium concerning the Islamic Full Face Veil and the Belgian Ban on Face
Covering, 1 June 2012, available at: www.ugent.be/re/publiekrecht/en/research/human-rights/faceveil.
pdf (last accessed 28 September 2012); Open Society Foundations, Unveiling the Truth: Why 32 Muslim
Women Wear the Full-face Veil in France, 2011, available at: www.soros.org/publications/unveilingtruth-why-32-muslim-women-wear-full-face-veil-france (last accessed 28 September 2012); Moors,
A., Gezichtssluiers: Draagsters en Debatten [Face Veils: Wearers and Debates], Amsterdam School
for Social Science Research, 31 January 2009, available at: www.e-quality.nl/assets/e-quality/dossiers/
Moslimas/Onderzoek%20Gezichtssluiers%20draagsters%20en%20debatten.pdf
(last
accessed
28 September 2012). Similar studies are currently conducted in the United Kingdom and in Denmark.
Intersentia
Column
Meanwhile, it should be emphasised that the women involved in these studies are
certainly not representative for women all over the world wearing facial coverage. The
studies concern several Western European countries and do not pretend to have any
direct relevance on the situation of women wearing facial coverage elsewhere in the
world. Indeed, there are countries where the wearing of facial coverage is not a free
choice for the majority of women and where it is meant to underline the subordinate
position of women. These situations, where women are forced to do something against
their will or are prevented from participation in society, raise serious human rights
concerns. But even in these situations, the legal approach may be a necessary, but
certainly not the only approach to tackle the situation. In many countries, harmful
cultural practices are prohibited by law, yet despite this, they continue. Law may be a
useful instrument, but it cannot by itself change harmful cultural practices.
In situations where women are forced to wear a face veil, it is questionable whether
criminalising them has the desired effect. If women have to wear the face veil to
confirm their subordination to men, a prohibition could be a powerful signal, but it
seems better to address this issue by dialogue and education than by forcing people
to change their views by law. Changes in cultural practices are most successful if they
arise from within the cultural community itself and are not imposed from outside, by
law or by the State. Cultures are not static. Change is possible and human rights can
in fact be instrumental in such change.
The handling of human rights and cultural diversity therefore requires a
multidimensional approach, in terms of instruments and in terms of actors. Apart
from legislation, human rights policies and measures in the field of education and
social development should be taken. The preparation and implementation of such
laws and policies should not only involve state authorities, but as much as possible, the
cultural communities concerned as well. Cultural communities have an important
responsibility. Human rights and cultural diversity require mutual respect: the
reception of cultural diversity can only take place in a context in which the cultural
community involved shows respect for human rights. Cultural communities may
have a certain amount of freedom to arrange their internal structure and institutions,
but they should always guarantee and respect the rights and freedoms of their
individual members, including, for instance, the right to take part in the decisionmaking processes that determine and develop the community’s culture, as well as
the right and freedom to leave the community. They should also respect the rights
of their members to participate in society at large, for example through education,
election processes and labour. Human rights and cultural diversity are too complex
and too dynamic to be dealt with by law and by the State alone. At the same time, their
importance for individuals, communities and society makes this relationship too hot
not to handle.
Netherlands Quarterly of Human Rights, Vol. 30/4 (2012)
381
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