The limits of post-national citizenship: European Muslims, human rights and the hijab

Abstract

Innovative approaches to citizenship emerged in the 1990s. Post-national theory suggested that European minorities no longer needed national citizenship because supra-national political structures such as the European Court of Human Rights (ECtHR) offered them protections. Denationalized citizenship held that universal human rights were now available at the national level too as the Council of Europe's member countries had to incorporate human rights principles within their own jurisdictions. New forms of claims-making among European Muslims were cited as evidence of this trend as religious claims, especially relating to the hijab, began to be made through human rights litigation. This paper demonstrates the limits of post-nationalism through a discussion of the outcomes of such claims. While European Muslims are indeed mobilizing around human rights, there is no evidence – at the level of litigation – that this has helped them to win recognition of their religious or cultural rights. This paper explores the reasons for this.

Keywords:

• Activism
• citizenship
• cosmopolitanism
• headscarf
• Muslims
• Europe

Acknowledgements

The author would like to acknowledge the ESRC for the provision of funding (RES-000-22-1948); Professor Bill Bowring whose substantial expertise in the ECtHR was of great benefit and, finally, two anonymous reviewers for their incisive and helpful comments.

Notes

1. For details of cases see http://cmiskp.echr.coe.int/tkp197/search.

2. [2006] UKHL 15.

3. Case No. 2BvR 143602 (Bundesverfassungsgericht) [BVerfG; Constitutional Court] 24 September 2003.

4. Dogru v. France, App. No. 27058/05; Kervanci v. France, App. No. 31645/04.

5. BVerfG, 1 BvR 792/03 cited in McGoldrick, 2006: 111–9.

6. Grand Chamber judgment, Şahin v. Turkey, App. No. 4474/98, para. 109.

7. Dahlab v. Switzerland, App. No. 42393/98.

8. Dogru v. France, App. No. 27058/05 para. 63.

9. Dogru v. France, App. No. 27058/05 para. 72.

10. See http://www.hri.org/docs/ECHR50.html#C.Art9.

11. Şahin v. Turkey, App. No. 44774/98 para. 3, Dissenting Opinion of Judge Tulkens.

12. Updates From the Regional Human Rights Systems: ECtHR by Jan Kratochvil, p. 46.

13. See Şahin v. Turkey, App. No. 44774/98 para. 31 and Dogru v. France, App. No. 27058/05 para. 66.

14. Laïcité refers to separation between church and state whereas Laïklik refers to state control of religion.

15. Şahin v. Turkey, App. No. 44774/98.

16. http://www.theparliamentcom/no_cache/latestnews/news-article/newsarticle/european-parliament-vice-president-calls-for-burqa-ban/