The ‘Burkini Ban’ – A Red Line even for the European Court of Human Rights?
The decision of several authorities in France to prohibit the wearing of the burkini on public beaches has caused considerable controversy. Within France, the ‘burkini ban’ has been justified primarily on the ground of laïcité but also public order and public health. While the Conseil d’État has held this to be a violation of civil liberties and fundamental rights, women wearing the burkini continue to be targeted and fined on public beaches. Furthermore, the ban finds support from right-wing politicians, including Sarkozy, who has promised to change the French Constitution to allow the ban, should he be re-elected. Consequently, it is relevant to consider the potential outcome should the ‘burkini ban’ be challenged before the ECtHR. Although the ECtHR appears to have given States carte blanche to restrict freedom of religion on the grounds of laïcité, it is suggested here that the ‘burkini ban’ is likely to be a red line, even for the ECtHR.
Proponents of the ‘burkini ban’ argue that it seeks to uphold the principle of laïcité, which the ECtHR has consistently accepted pursues the ‘the rights and freedoms of others’ under article 9(2) ECHR. States have been given a wide margin of appreciation in this respect, as secularism is compatible with the role of the State as the ‘neutral and impartial organiser’ (Dogru para 62). However, in the case of Ahmet Arslan and others v Turkey¸ the ECtHR set out the limits of this justification for the restriction of article 9 ECHR: a) the applicants must be State officials (para 48) or b) the case must concern the regulation of religious symbols in public institutions, such as schools (para 49). Thus, the restriction on religious manifestation must be intended to maintain the neutrality of State institutions if it is to be accepted by the ECtHR. Indeed, France has only employed laïcité as a justification for the limitation of article 9 ECHR in cases concerning State institutions or State employees. Notably, France did not seek to use laïcité to justify the so-called burqa ban in SAS v France, which raises similar questions to the ‘burkini ban’ regarding the blanket prohibition of religious symbols in public spaces. Consequently, it would appear that not only is an appeal to secularism unlikely to be accepted by the ECtHR in this instance, but France is also unlikely to attempt to rely on laïcité as a justification.
Nonetheless, there are other justification available to France. In Ahmet Arslan, the ECtHR also accepted that article 9 ECHR could be limited in order to prevent the applicants from proselytizing and exerting undue pressure on passers-by (para 50) under the ground of ‘the rights and freedoms of others’. However, as recognised in Lautsi ‘[t]he display of a religious symbol does not compel or coerce an individual to do or to refrain from doing anything’ (Concurring Opinion of Judge Power). The mere wearing of an item does not amount to proselytism and there has been no evidence to suggest that women wearing the burkini have sought to ‘exert undue pressure’ on others. Consequently, it seems unlikely that the ECtHR would accept the necessity of the restriction on article 9 on this ground.
France could also seek to rely on ‘public safety’, as the ECtHR has previously accepted that the manifestation of religion can be limited to allow the identification of the individual and to combat fraud (Mann Singh). Yet, in SAS, the blanket nature of the burqa ban was found to be disproportionate to this aim and only justifiable ‘in a context where there is a general threat to public safety’ (para 139). Given the absence of such ‘a general threat’ and as the burkini does not appear to pose a greater threat to public safety than a wetsuit or any other form of clothing on the beach, the blanket ban is also likely to be found to be disproportionate by the ECtHR.
Finally, France could argue that the blanket ban pursued the aim of ‘living together’, as it did successfully in SAS. Nonetheless, the barrier posed by the burqa and niqab to social communication were central to the ECtHR’s decision in this case (para 153). As the burkini does not cover the face and, furthermore, is only worn in a restricted context – the beach – it seems clear that the ECtHR would also find the ban to be disproportionate to the aim of ‘living together’.
Although the limits placed by France on the manifestation of religion appear to have gone largely unquestioned by the ECtHR, it seems unlikely that it would accept that the ‘burkini ban’ pursues a legitimate ground of limitation. The blanket nature of the prohibition is particularly problematic and France appears to have exhausted the scope of the accepted limitations on article 9 ECHR. Furthermore, were the ECtHR to accept the legitimacy of the ‘burkini ban’ this has potential to open the door to further restrictions of article 9 ECHR including a blanket ban on the hijab and turban. Consequently, the ‘burkini ban’ may go too far, even for the ECtHR.