Domestic legislatures and international human rights law: Legislating on religious symbols in Europe

ABSTRACT

This article examines the dynamics of domestic legislatures' application of international human rights law. Specifically, this article asks the following: What factors shape how domestic legislatures apply international human rights law while they enact national law and policy? Lawmakers have a variety of motives for invoking and deliberating international law. Given these motives, the article identifies two factors — civil society actors and legal experts and the flexibility of international law — that are likely to contribute to if and how national legislatures interpret and apply international human rights law while legislating. These factors are examined through case studies on religion in schools in the United Kingdom, Germany, and France. This article argues civil society actors and legal experts and the flexibility of international law inform lawmakers' estimation of political costs related to compliance and thus how they apply international human rights law to domestic legislation.

Acknowledgments

Previous versions of this article were presented at the MultiRights Summer Institute, the German Academic Exchange Service workshop on “Legal Mobilization in Germany and the European Union” at York University, and the 2013 Swedish Political Science Association Annual Meeting. The author would like to thank participants for helpful comments. Special thanks to Jonas Tallberg, Jan Aart Scholte, Johan Schaffer, Lynn Dobson, Andreas Føllesdal, and anonymous reviewers.

Funding

Funding for this project has come from the Transdemos program at Stockholm University and the MultiRights and PluriCourts programs at the University of Oslo.

Notes

1. Whether or not France, Germany, and United Kingdom together are appropriate for a most-similar case design may be disputed by some. While these three countries are not perfectly similar, they are more alike than not on several key factors concerning the empirical focus at hand. There are, however, some notable differences between France, Germany, and the United Kingdom (such as constitutional review, the structures of their judiciaries, and state–church relations). Where differences do seem to be important, I elaborate on them in the analysis and discussion. Other candidates for a most-similar design also suffer from similar challenges because no two countries are identical.

2. The Employment Equality (Religion or Belief) Regulations 2003. Statutory Instrument 2003 No. 1660.

3. On January 27, 2015, these bans were declared unconstitutional by the BVerfG and are no longer in force. This decision found exemptions for Judeo-Christian symbols constituted unconstitutional religious discrimination and that all blanket bans on religious symbols worn by teachers in public schools were unconstitutional (see 1 BvR 471/10, 1 BvR 1181/10 January 1, 2015).

4. These five länder are Baden-Württemberg, Bavaria, Saarland, Hessen, and North Rhine-Westphalia (see Elver 2012: 142–143).

5. These three länder are Lower Saxony, Berlin, and Bremen (see Elver 2012: 143).

6. Gesetz zur Änderung des Niedersächsischen Schulgesetzes und des Niedersächsischen Besoldungsgesetzes vom 29.04.2004. Nds. GVBl. S. 140–142.

7. Erstes Gesetz zur Änderung des Schulgesetzes für das Land Nordrhein-Westfalen vom 13.06.2006. NW. GVBl. S. 270.

8. For feasibility, one from each group was examined. Data availability also informed the selection of North Rhine-Westphalia and Lower Saxony.

Additional information

Notes on contributors

Theresa Squatrito

Theresa Squatrito has a PhD in political science from the University of Washington. She researches the politics of international courts and organizations.