with impacted constituencies (both those impacted by restrictions and by a lack of restrictions on such garments), and, if so, what their views are.93
She examines two court decisions—the European Court of Human Rights (ECHR) judgment in Sahin v. Turkey (2004)94 and the British House of Lords judgment in Begum v. Headteacher. In Sahin, the ECHR found that Turkey’s ban on the headscarf in universities did not violate the European Convention on the Proection Human Rights’ Convention guarantee of religious expression. On the other hand, in Begum, the House of Lords upheld a school’s ban on the jilbab, which is a long cloak covering everything but the head, hands, and feet.95 While she appears to be open to the possibility that veil bans are permissible in some countries but not in others, Bennoune finds the bans to be justified in Turkey and the United Kingdom.96
In Sahin, the issue before the ECHR was whether the Turkish ban violated a women’s right to free expression under the Convention.97 Under the Convention, this right can be limited in order to protect the rights of others.98 Bennoune believes that the Turkish ban was appropriate because “[e]ven to the extent that for some women, the choice to wear a headscarf is their own, and is for them an expression of religious belief, this limitation on that choice is necessary in context to protect the rights of others.”99
She also concludes that in Begum the ban in the United Kingdom on the more restrictive clothing was appropriate in a situation where a less restrictive headscarf was still available and where there was evidence that some girls would have felt coerced into wearing the restrictive dress if it were not banned.100 Bennoune points out that her conclusion that the bans were appropriate in both the Turkey and United Kingdom cases hinges upon the fact that they were in public educational institutions, which shape the identities of future generations and forge the public consensus about gender roles and equality.101
On the other hand, she argues that while bans in Turkey and the United Kingdom were appropriate, it would be inappropriate to ban it in the American law school where she teaches because so few women wear them.102 The magnitude of the practice in the context in which it occurs appears to be an important consideration in determining whether to ban it. Even though she believes bans in both Turkey and the United Kingdom were appropriate, her contextual approach to evaluate bans leaves open the possibility that in some contexts, veil bans may not be appropriate. I build on this idea in developing the methodology I describe in the next section.
Bennoune also briefly discusses France’s 2004 law restricting religious dress in schools, but does not draw any conclusions about its legitimacy. She notes that the “the French law perches in between as a truly hard case.”103 In Chapter 7, I discuss France’s full-face veil ban adopted in 2010, three years after the publication of Bennoune’s article.
Context in International Human Rights Law:
Universality vs. Cultural Relativism
The debate about whether international human rights should apply universally across cultures and countries or whether they should vary based on culture is age-old.104 A “strong” cultural relativist would “assert that culture is the sole or primary source of the validity of a practice or claim to a moral right.”105 The supporters of universalism often draw upon natural law and reason and argue that there are objective standards by which to judge human conduct and to create law. Universalism “assumes that there is law that is so basic, so ‘natural,’ that it exists in all communities.”106
In the early 1990s, this binary frame for human rights also elicited much debate about women’s rights. What Western feminists might consider oppressive, Western relativists consider cultural preservation.107 Take, for example, the practice that some call female genital mutilation while others label female genital cutting, which is a more neutral term. Feminists have debated whether or not the practice is oppressive to women in Africa or an acceptable cultural practice.108
Tracy Higgins, a feminist and international human rights legal scholar, observed decades ago the parallels in the critiques made by anti-essentialist feminists against mainstream feminism to the critiques made by relativists to universalism.109 She notes that:
… anti-essentialist feminists have attempted to rethink both the various descriptions of gender oppression that have been offered and the assumption that gender oppression can be described meaningfully along a single axis. Instead, they have focused on local, contextualized problems of gender oppression. In this sense, anti-essentialism’s criticism of general accounts of women’s oppression parallels cultural relativism’s critique of universal theories of human rights. Like cultural relativism, feminist anti-essentialism seems to lead to the conclusion that gender inequality cannot be explained cross-culturally.110
These observations recognize the intersection between feminist legal theory and international human rights law and practice as I do here.
Professor Higgins further observed the challenges in resolving the debate between the universalists and relativists. She pointed out that:
Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women’s freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness.111
I think there may be a narrow road between the two broad paths she lays out between the rejection of a common notion of gender equality and the rejection of all “cultural practices.”
While those feminist debates in international human rights are relevant here, I am not asking the same question they struggled with. Those conversations were about whether or not a seemingly sexist practice should be permitted in a country because it is part of the religion or culture of the country in which it is practiced. Rather, I am asking whether a practice that is considered to be oppressive in one country context should be automatically deemed oppressive in another country context. For example, the question I am wrestling with is whether the veil is oppressive to women in France or Belgium where it has not been traditionally worn and is worn by a relative few number of women. I am not asking whether or not the veil is oppressive to women in Iran where it is required by law or in a country where social norms dictate it. Few have seen these as separate questions, and I argue that they are not only separate questions but that they should be analyzed differently.
Of course whether the veil is oppressive in countries where it is mandatory or dictated by social custom is not totally unrelated to the question about whether the veil is oppressive to women who wear it in France. In order to understand whether or not a cross-border practice is harmful for women’s rights in the country of destination of a migrant, we must understand the reasons, scope, and consequences of the practice in the country of origin of that migrant. In this process of comparison, we may learn that the motives, consequences, and impact of the practice are entirely different in the country of origin of the immigrant than in the country of destination. We may also learn that they are similar. In its current state, international human rights practice and theory has left little room to consider whether or not cross-border practices change meaning when transported to another context—such that a practice can simultaneously be seen to violate human rights in one country context but not in another. Questions about these narrow sets of practices (i.e., brought from one country to another by migrants) get swallowed up by the larger debate about whether all human rights are universal or culturally relative.
Universality
