Autonomy, Identity, Difference, and Incorporation in(to) Societyand Incorporation in(to) Society

The human rights norms of general application do not expressly mention such issues as autonomy or identity, but a number of human rights – such as freedom of religion or belief, freedom of opinion and expression, freedom of association, and respect for privacy and family life – in fact contribute to guaranteeing individuals a certain sphere of freedom or autonomy.⁹⁶⁵ Guaranteeing human rights has also been seen as tantamount to a certain recognition of the identity of individuals.⁹⁶⁶ In fact, setting

tional instruments applicable to such persons. See also the remarks on refugees and stateless persons supra in chapters 2.1.3.1.3 and 2.2.2.

962. This concern is clearly noted in the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live, adopted by the UNGA in 1985, which addresses e.g. economic, social and cultural rights and cites the aim of avoiding un-due strain on the resources of the state. See art. 8.1(c). See also Eide (1995), pp. 34–35.

963. See CERD’s General Recommendation No. 30 on discrimination against non-citizens, para. 3. See also the remarks supra in chapter 2.2.1.1.1.

964. See CERD’s General Recommendation No. 30 on discrimination against non-citizens, para. 4. See also Kälin (2003), pp. 276–278, and Nowak (2005), pp. 54–55, 618–619 and 626–627. For the complex relationship between citizenship and human rights, see e.g.

Butenschon (2003). For the protection of non-citizens in international human rights law, including observations on problems in the area, see Weissbrodt (2007). See also the remarks on the significance of nationality supra in chapter 2.2.2.

965. For the remarks on human rights as commitment to human autonomy and freedom, see Quinn (2005), p. 281. For the remarks on advancing the autonomy of individuals by equal-ity provisions, see Fredman (2002), pp. 15–16. For private autonomy and human rights, see also Habermas (1996), pp. 84–103.

966. According to Walter Kälin, human rights protect the cultural identity of everyone, includ-ing migrants, thus givinclud-ing legal force to the idea that respect for human beinclud-ings requires recognition of their identity. Kälin (2003), p. 282.

out the prohibited grounds of discrimination in the human rights norms constitutes a certain recognition of the identities linked to the grounds enumerated; this is more of a negative recognition, however, i.e. one viewing the identities as disadvantages to be ignored or corrected.⁹⁶⁷

A space of personal autonomy creates an area within which individuals are most clearly allowed (without state interventions) to maintain and develop their cultur-al traditions as well as various manifestations of their identity. The human rights norms creating this sphere of freedom for individuals reflect the public-private di-vide incorporated in international human rights law, which also relates to the reach of human rights protection primarily and directly to the relationship between the state and individuals discussed above. While the public-private divide allows diver-sity and difference to flourish particularly in the private sphere, the private sphere is not excluded from state interventions. International human rights norms permit states to intervene in this sphere, for instance, in the interest of the protecting hu-man rights; in fact, the pertinent norms leave states a wide margin of discretion in this regard.⁹⁶⁸ Some practices, such as female genital mutilation, despite being central to a culture, are viewed as warranting restriction or prohibition, i.e. state intervention.⁹⁶⁹

The complex relationship between equality and difference was discussed above and, among other things, it was observed that the choice of the concept of equal-ity followed has a bearing on the role or significance given to difference within the equality paradigm. Formal equality aims at disregarding individuals’ characteristics (such as race, sex, religion, colour, or ethnic origin), with this blindness justified by the fact that difference is the negative partner that legitimates detrimental treat-ment of those who are different. Since the right to equal treattreat-ment is in practice reserved to those who conform, this approach also values sameness and endorses assimilation and conformity. Being intensively individualistic, the concept of for-mal equality disregards membership in cultural, religious, and ethnic groups, for instance; it aims at abstracting the individual from these contexts and refuses to recognise the different needs and desires arising from these frameworks. However, the result is not the creation of a universal individual, but rather the vesting of a person with the attributes of the dominant culture, religion, or ethnicity. Despite these problems, the notion of formal equality has its positive elements, for it has played an enormously valuable role in tackling formal, exclusionary rules (including

967. See also the remarks infra in this section.

968. See particularly art. 8.2 of the ECHR, which allows restrictions on the right to private and family life. The ICCPR denies arbitrary or unlawful interferences with privacy. See art. 17.1.

969. Fredman (2001b), p. 36. See also the remarks in HRC’s General Comment No. 28 on art.

3, para. 11.

laws) and in prohibiting blatant prejudice.⁹⁷⁰ In the area of racism, formal equality has been able to address racial prejudice and stereotyping.⁹⁷¹

More substantive forms of equality have given some room for the acknowledge-ment of difference. For instance, the application of the concept of indirect discrimi-nation has brought some progress towards fashioning a notion of equality which can accommodate diversity. In practice, applications of the concept of equality have helped reveal the extent to which the dominant culture or religion is favoured in various situations. However, the measures taken to advance substantive equality entail challenges and problems of their own: pursued through the endorsement of equality of results, a change in the colour and/or gender composition of a work-place, might, while to some extent positive, reflect only an increasingly successful assimilationist policy. Women in male-dominated sectors of work may have suc-ceeded in entering them by conforming to “male” working patterns, and members of minorities who have entered the sectors may be those who have conformed with the prevailing patterns of behaviour (e.g. the way of dressing, religious observance, language, etc.); that is, in practice, they have assimilated, whether voluntarily or be-cause of the lack of available options. Furthermore, it is not uncommon that when the numbers of women and/or (certain) minorities increase in certain types of jobs, the pay for or status of the job in question decreases. In general, the danger in the concept of substantive equality is that it pays too little attention to the equally im-portant duty to accommodate diversity by adapting existing structures. The group dimension is taken into account, but not positively, to acknowledge the characteris-tics of other cultures or groups to modify structures.⁹⁷²

It has been observed that the case law in various jurisdictions reveals that sur-prisingly little progress has been made in creating a concept of equality which can penetrate rules that are apparently neutral but in fact entrench the dominant norm.

Among other things, the proportionality approach of the ECHR is viewed as a sophisticated form of consistency signifying that difference is treated according to the degree of difference.⁹⁷³ The approach of the ECHR requiring the weighing of competing interests means that much depends on which factors are acceptable as potentially outweighing the equality interest. Formally neutral rules carry a particu-larly high risk of disguising an endorsement of the dominant norm especially where the state asserts that the rule furthers the “public interest”. It has been demonstrated that in cases concerning Roma and religious discrimination, the European Court of Human Rights has failed to recognise the extent to which apparently neutral rules

970. Fredman (2002), pp. 7, 9, 11 and 16. Efforts to prohibit overtly prejudicial behaviour take up the issue of e.g. paying differential rates for like work. See p. 7. For the powerful con-formist pressure of formal equality, see p. 9. See also the remarks supra in chapter 2.3.1.1.

971. Fredman (2001b), p. 23.

972. Ibid., pp. 23–26. See also Fredman (2002), pp. 13–14, 109 and 123.

973. Ibid., p. 118. See also the remarks supra in chapter 2.3.1.1.

reinforce the values of the dominant groups in society. In general, cases concerning claims of minorities and claims relating to health and safety (such as the use of safe-ty helmets by Sikhs andthe use of drugs such as peyote and hashish) have brought complex questions to the fore, but in practice accommodation and respect for mi-nority cultures and values have not received much support in the framework of hu-man rights of general application, including the ECHR.⁹⁷⁴ The conflict between gender equality and the rights of minorities – whether older or newer minorities – appears to be a particularly acute issue. Relating to this, the wearing of headscarves by Muslim women and girls has emerged as one of the key contested sites, having raised particularly heated debates in many European states, for example, France and Germany, as well as in Turkey, where the issue has additional dimensions of its own. Prohibitions against the use of headscarves in the public sphere, for instance, in the area of education have been justified on the basis of the principle of secular-ity, which itself is not a neutral value.⁹⁷⁵ The Strasbourg Court has been hesitant to offer protection to the users of Muslim headscarves.⁹⁷⁶

Human rights of general application and the principles of equality and non-dis-crimination incorporated therein have links to the question of incorporation in(to) society, since the norms and principles play a role in preventing the exclusion and marginalisation of individuals in society. While the requirement of non-discrimina-tory application of human rights has a bearing on enhancing inclusion, the role of non-discrimination provisions in this process has limitations, which have been dis-cussed above. These limitations stem from the fact that international human rights norms rarely contain positive duties for states to promote equality and that the as-sertion of a right to equality is essentially left to the individuals who are the victims of discrimination. In practice, this also means that only those in a position to invoke the mechanisms available may benefit from them, and that persons in the most vul-nerable situations may be barred from doing so. On the other hand, those who wish to enjoy equal rights (including the protection of human rights) are also subject to pressure to conform to the dominant norms and practices, as the prevalent concept of formal equality entails disregarding differences; the concepts containing a more substantive idea of equality are not free from this conformist pressure either.

974. Fredman (2001b), pp. 32–34 and 38, and (2002), pp. 38–39 and 119. Fredman comments on the practice of the European Court of Human Rights in particular. For the limited support for the different lifestyles of the Roma under the ECHR, see e.g. Buckley v. United Kingdom.

975. E.g. in France the principle of laicité (secularity) has been used to argue for a concept of equality which stresses identity and overrides ethnic, religious, or cultural differences ex-cept in the domain of private life. Fredman (2001b), pp. 36 and 39–42.

976. See e.g. Dahlab v. Switzerland and Leyla Şahin v. Turkey.

3

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and integration into society

3.1 Human Rights and Fundamental Freedoms