Tag Archive | "France"

 "The many garments of Islam including hijabs, niqabs, burkas, and burkinis." - Photo Credit AFP

The State of European Burqa Bans


 "The many garments of Islam including hijabs, niqabs, burkas, and burkinis." - Photo Credit AFP

“The many garments of Islam including hijabs, niqabs, burkas, and burkinis.” – Photo Credit AFP

Recent attacks in France and Germany have put the international community on alert and caused governments in those countries to draft or enforce legislation aimed at preventing future attacks. While countries in France have drafted legislation directly targeting what is believed to be symbols pertaining to Islamic extremism, Germany has chosen a more neutral approach by targeting all items of clothing that obscure facial identity in public places. However, despite the approach taken, both countries have come under heavy criticism for enforcing such laws in the name of public safety.

Though France was the first country to ban both the burka (full-face Islamic veil) and the niqab (partial facial covering) in 2011, the mayor of Cannes in southern France, David Lisnard, has recently faced criticism for banning burkinis (full-body swimsuits) from beaches. Many critics have questioned the legality of the ban by pointing out that French law only bans facial coverings. However, David Lisnard has disregarded those questions and instead attempted to focus the conversation on the public policy reasons behind the law. One reason cited for the ban was to prevent incidents of public disorder. The idea behind that reasoning is that beachwear displaying a religious affiliation at a time when France and places of worship are targets of terrorist attacks is a portent for augmenting tensions and disrupting public order.

Similar to the French, Germany’s Interior Minister, Thomas de Maiziere, has called for a partial ban on burkas in public places only days after saying a full ban on burkas would be unconstitutional. The law would prevent any facial veil in schools, universities, nurseries, public offices, or while driving. While the proposal still has to be approved before becoming law, many feel it is only a matter of time, given Germany’s victimization by Islamic State attacks and a record number of Muslim asylum seekers seeking entry into the country. Thomas de Maiziere has endorsed the partial ban as essential to the social cohesion of Germany’s citizens while in public and open society. Moreover, he has emphasized that the proposal is not a ban on the burka specifically, but rather a ban on any full veil where only the eyes are visible.

While government officials in France have faced criticism from citizens and political activist groups, Germany’s government officials’ political motives have been questioned. In response to the Cannes ban on burkinis, groups such as the League of Human Rights (LDH) and the Collective Against Islamophobia in France (CCIF) have announced their intent to challenge the law. In Germany, however, critics are questioning whether the proposal is purely political since recent statistics demonstrate it is uncommon to see a woman in Germany wearing a full-face veil or even a scarf. Moreover, two issues central to Germany’s general election next year will focus on asylum seekers and preventing future terrorist attacks.

Given the criticism and public outrage towards the Cannes’ ban on burkinis, future news may be expected regarding the status of the law. Also, Germany’s proposal may continue to make news up until the general election if the law is of importance to the main issues discussed in next year’s general election.

Nicole Chaney is a 2L at University of Denver Sturm College of Law and Online Managing Editor on the Denver Journal of International Law and Policy and Staff Editor on the Denver Law Review.

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Responsibility to Protect in the Wake of the Paris Attacks

On Friday November 13, 2015, France experienced a sequence of horrific terrorist attacks, for dddwhich the Islamic State claimed responsibility; nonetheless, the attacks have also been linked to Syria. In our reaction to the events on Friday, it is important to remember all of the positive efforts that France has engaged in to aid the persecuted peoples of Syria. In reflecting on the grim events there are two important things to remember: the Responsibility to Protect (R2P) and “Liberté, Egalité, Fraternité.” The first, is the UN doctrine of humanitarian intervention to protect the welfare of individuals, which France has heavily advocated for throughout the Syrian conflict. The second, is the French national motto, “Liberty, Equality, Fraternity,” which embodies the French spirit and is reflected in Article 1 of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” It is critical in this time of crisis for France to base its reaction on the foundation these two principles.

Over the last four years, France has advocated for the use of the R2P doctrine, led the investigation into the humanitarian violations of President Bashar al-Assad, and offered protection to about 5,000 Syrian refugees (more than double the number the U.S. has admitted). However, in reaction to Friday’s attacks, President Hollande stated that France will “lead the fight and we will be ruthless.” In this moment of crisis, President Hollande should rather stand steady in France’s position based on humanitarian intervention.

To honor the 129 (and counting) lives lost in the terrorist attacks, France, and the world, should stand by those still suffering from the extreme persecution that is occurring in the Syrian state. Less than a month ago, Laurent Fabius, Minister of Foreign Affairs and International Development, met with other leading nations to discuss a transition in Syria to protect the civilians and “confirm[ed] the commitment of France to go forward with its initiative on a collective code of conduct.” The “code of conduct” to which Minister Fabius referred was R2P. In 2005, the United Nations Member States agreed to the R2P doctrine and it should be with this doctrine that we continue to intervene in Syria. R2P is comprised of three pillars:

  1. The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;
  2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;
  3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.

The implementation of R2P requires that action be ordained under the provisions of the United Nations Charter, which essentially gives decision-making authority to the Security Council. The implementation of R2P begins when states have failed to meet the needs of their people; then international obligation requires states to prevent and punish genocide, war crimes, and crimes against humanity. Conventional and customary international law understands this obligation. However, the R2P is not meant to be a military intervention that threatens sovereignty, rather, it is designed to prevent atrocities, react to the active occurrences of violations, and help rebuild after a crisis has passed. In essence, as Secretary General Ban Ki-Moon put it, the R2P is satisfy “the aspirations of people everywhere for a safer, more secure world for ‘We the peoples.’”

The R2P is, admittedly, only an international norm, carrying with it no obligation under international law. Thus far, implementation of the R2P has been prevented by Security Council vetoes from China and Russia. Dr. Simmon Adams argued in a Global Centre for the Responsibility to Protect Occasional Paper Series that each failure of the Security Council to act has increased the level of violence used by President Bashar al-Assad.

The violence used by President Bashar al-Assad has indeed been horrific. In April 2014, the Permanent Representative of France to the United Nations addressed a letter to the Security Council, S/2014/244, which provided testimonial, photographic, and medical evidence of crimes against humanity and war crimes. Included in the letter were graphic images of Syrians who had been detained by the agents of the Syrian government; in viewing the photos, the images are reminiscent of images from the Holocaust. Following this report, France proposed a resolution, backed by 58 countries, to have the Security Council refer the situation in Syria to the International Criminal Court (ICC). Unfortunately, this resolution was vetoed by Russia and China. This veto occurred in spite of France’s previous advocacy that the Security Council members refrain from using their veto power when mass atrocity crimes are at stake.

Nonetheless, in a bold move France began its own investigation of President Bashar al-Assad in September, to hold him accountable for his administration’s human rights violations. This investigation will require that France identifies French nationals among the victims, but France’s continued attempts to hold President Bashar al-Assad accountable are commendable. While this effort may ultimately be unsuccessful, the investigation is giving attention to the 8,871 Syrians being kidnapped, detained, and/or tortured; not to mention the larger number of 200,000, which is how many Syrians have died since the beginning of the conflict. These lives certainly do not diminish the value of the lives lost in France on Friday, but France should be proud of its efforts to help end the Syrian crisis; and should not abandon these efforts.

Currently, there are 4,287,293 registered Syrian refugees. What is important now for France, and the world, is to remember that there are people in Syria who need international humanitarian protection. In light of the inhumanity that we, as a world, have witnessed, we must not be so feeble-hearted as to close our borders to those seeking refuge. France, and all of us, need to take to heart the words of Remi Piet, an assistant professor of international affairs at Qatar University, “any link to the refugees coming from Syria is an error because refugees are the first victims of Daesh [ISIL].” Providing shelter to refugees and acting with integrity, a spirit of protecting our innate humanity, are embodied in the guiding principles of the Responsibility to Protect and “Liberté, Egalité, Fraternité.”

Alison Haugen is a 3L Sturm College of Law and Graduate School of Social Work dual degree student and a Staff Editor on the Denver Journal of International Law and Policy.


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Does Iran’s Ballistic Missile Test Detonate the Nuclear Deal?

On October 10 Iran successfully test launched a new precision-guided ballistic missile. On Wednesday, Britain, France, the United States, and Germany addressed a letter to the United Nations Security Council’s Iran Sanctions Committee claiming that the test violated a Security Council resolution prohibiting Iran from nuclear capable missile testing. In the wake of this allegation, and the recent adoption of the nuclear deal forged between Iran and world powers, there is confusion as to what impact an affirmation of the allegation may have on the deal, and why Iran may have chosen to test now, at such a sensitive time.

The Facts

October 10th launch of Iran’s Emad IRBM. Courtesy of IRINN news in Iran.

On July 14 Iran and world powers signed a ground-breaking deal to limit the ‘breakout time’ for Iran to develop a nuclear weapon, in exchange for a reduction and eventual repeal of sanctions levied against the Islamic Republic. For decades, the UN Security Council has held strong to a policy of sanctioning Iran for actions it takes with respect to its nuclear program, a program which Iran has consistently claimed is intended only for peaceful purposes. This deal signals a strong shift by the UN, United States, and world powers in their approach to dealing with Iran, prioritizing direct negotiation and an incentives-based approach over sanctions. The world powers who signed the agreement with Iran include; The United States, France, Germany, China, Russia, and the United Kingdom.

Specific details on the October launch are sparse, but we do know that the missile, named the Emad (Pillar), is a surface-to-surface intermediate-range ballistic missile (IRBM). The missile, precision-guided until it reaches the target, greatly enhances Iran’s medium-range precision strike capabilities because, as reported by Iran’s national news organization, the Emad is “capable of scrutinizing the targets and destroying them completely.” It has been reported that the missile is capable of complete accuracy within a 1,700km range, can carry a 750kg payload, and would be deployed in 2016. The State of Israel, which the leadership of Iran has vowed, but never attempted, to destroy, is within 1,700km range of Iranian territory. Israel and The United States are long-time allies. The tested missile was not loaded with a nuclear weapon, but a ballistic missile is the preferred delivery system for a nuclear warhead.

The letter addressed to the UN stated that the missile was “inherently capable of delivering a nuclear weapon”, and that they hope the information will be used to “examine and take appropriate action in response to violations.”

The Laws

United Nations Security Council Resolution 1929 adopted in June 2010 prohibits Iran from “undertake[ing] any activity related to ballistic missiles capable of delivering nuclear weapons[,]” but the leadership in Iran has consistently, and successfully, rejected the enforceability of UN resolutions targeting its domestic activity.

UN Sec Council

Members of the Security Council vote at United Nations headquarters, Monday, July 20, 2015. The U.N. Security Council unanimously endorsed the landmark nuclear deal between Iran and six world powers and adopted a series of measures leading to the end of U.N. sanctions that have hurt the Iranian economy. (AP Photo/Seth Wenig)



Under the new deal, titled the Joint Comprehensive Plan of Action (JCPOA), world powers have agreed to lift sanctions which were implemented under Resolution 1929, and other resolutions, in exchange for Iran stepping themselves back from developing warhead capability. As a part of the JCPOA a timeline of stages has been set, the first, which began this week, includes a reduction of some sanctions and the beginning of monitoring by the International Atomic Energy Agency (IAEA). UN Security Council Resolution 2231, the implementing document for the JCPOA in the United Nations, mandates that the next stage will begin on the ‘Transition Day’, eight years from Sunday. Annex V, Schedule D para. 19 conditions repeal of sanctions relating to the the international transfer of ballistic weapons to Iran on the completion of IAEA testing and the first phase of the agreement, or on the Transition Day, whichever comes first.

Additionally, while obfuscated by confounding language, the document does lay out a requirement similar to the language in Resolution 1929 prohibiting the development of nuclear ballistic missiles. Paragraph 3 of Annex B states that until the Transition Day, “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons.” The scope of Annex B of Resolution 2231, titled “Statements”, is comprised of additional provisions set forth by each of the signatory world powers which must be met to in order to facilitate complete “implementation of the JCPOA.” Paragraph 3 does allow for an earlier reduction in ballistic weapon sanctions, contingent on an IAEA report that suggests Iran has fully complied with the nuclear capability reduction requirements of the JCPOA prior to the deadline, but the United States has a veto on any proposed early repeal. It should be noted that nothing in the JCPOA or Resolution 2231 explicitly dictates what actions taken by Iran prior to the date of Adoption would violate the agreement, or what force a new violation of Resolution 1929 would have on the implementation of the JCPOA during the 90 days between execution and Adoption.


First, referenced above, the launch occurred on October 10, after the execution of the JCPOA but prior to the Adoption Day of Resolution 2231 in the UN. Therefore, it may be argued that the JCPOA and 2231 do not apply. This leads to an interesting analysis, because the penalty for violation of a provision in Resolution 1929 would be economic sanctions, which Iran has consistently ignored and which 2231 is designed to reduce in exchange for cooperation from Iran regarding all facets of their nuclear agreement, which includes nuclear ballistic missile development. It seems, from this perspective, that Iran may have been attempting to get in “one last shot” before the JCPOA is implemented. It had no direct incentive not to do so and knew that the international community would have little recourse in the way of remedy or penalty.

On the other hand, when Iran launched they were fully aware of the imminence of the adoption of the agreement they had signed, and therefore their actions may also be judged by whether they comply with the JCPOA. The preamble to the JCPOA states that the parties to the agreement “commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation.” It does not seem that a test launch weeks before Adoption would be in the ‘letter, spirit and intent’ of the deal. The launch did, however, occur just days before Ayatolla Khomeini’s official acceptance on the part of the Islamic Republic, possibly timed as to preempt any consequence under the JCPOA.

Second, there is an important difference in the language of the two resolutions prohibiting Iran from developing nuclear capable ballistic missiles. Resolution 1929 requires that Iran refrain from any activity related to ballistic missiles “capable of delivering [nukes]”, while 2231 prohibits any activity related to ballistic missiles “designed to be capable of delivering [nukes.]” Interestingly enough, when asked to comment, Iranian Foreign Minister Mohammad Javad Zarif said that “none of [Iran’s] missiles has been designed for a nuclear capability”, echoing the less restrictive language of 2231. The argument purported by the US and EU powers in the letter to the Iran Committee said that the missile was “inherently capable” of delivering nukes, focusing on the language of 1929.

Therefore, it seems that the United States claims that all ballistic missiles, whether ‘designed’ for nuclear capability or not, are “capable” of carrying a nuclear weapon, and therefore must fall under the provision as stated in 1929. Does this mean that the US claims that because the launch occurred prior to the Adoption Day of the JCPOA, Resolution 1929, which does not require ‘direction’ and therefore has a lower burden of proof, should be the controlling law? It is unclear whether the administration noticed the difference in the language when adopting their statement, or whether it thought the public would notice. Even if 1929 is the controlling law, the enforcement mechanisms in 1929 were not only ineffective when they were drafted, but are especially ineffective now, since they are in the process of being removed as a part of the JCPOA.

The Iranians, on the other hand, argue that they never conducted activity on missiles ‘designed’ to be nuclear capable, and therefore are not in violation of the provision, even though the test occurred prior to the Adoption Day. The official Iranian statement on the launch echoes the language in the JCPOA, and not that of 1929. The Iranian government has made no comment on whether, since they prefer to define the terms of their actions based on the JCPOA, they consider the launch to be within the ‘letter, spirit and intent’ of deal, as required by the preamble of the agreement. To sum it up, the US prefers the language of the old Security Council resolution, which is more inclusive but has no enforceability, whereas the Iranians defend their actions using the language of the JCPOA, which should be found not to include tests like the one on Oct 10, but if it was, would truly destroy the progress made to reach this deal.

Why Now?

Supreme Leader, Ayatollah Ali Khamenei 2015.

Based on the above analysis, it seems that neither the United States nor the Iranians want this launch, or any subsequent investigation, to detonate the landmark deal. Even so, neither is backing down. White House spokesperson Josh Earnest stated that while the administration was investigating the launch, that the test was “separate from the JCPOA” and did not violate the agreement. While no credible analysts believe that Iran’s ballistic missile program is for peaceful means, non-nuclear capable missile development is not prohibited by the JCPOA. So whether this missile is found to be nuclear capable or not, it has the potential to destabilize, but not detonate, the nascent trust between Iran and world powers. It is a wonder why, then, when the Ayatollah has come out in support of the deal, would he make such a bold, instigating, and seemingly benefit-less choice to launch?

In his effortless brilliance, Thomas Friedman, economist and columnist for the New York Times, may have inadvertently provided the answer almost a month before the launch. In his NY Times column dated September 16, ‘Iran Deal Players’ Report Cards’, Friedman grades all of the actors in the deal and gives the Ayatollah an “A”.  He explains that throughout the process, the Supreme Leader had been clever, acting to make himself domestically popular by “cheating” Iran’s way out of the “crippling sanctions, which his people want,” while all the while “giving his hard-line base the feeling that he’s still actually against this deal and his negotiators the feeling that he’s for it.”

While Friedman does end with a humorous reference to lessons the Ayatollah will learn in relation to the imminent domestic democratic transition in Iran, a-la Mikhail Gorbachev, he does also make a poignant parallel to the launch. He reminds us that just a week before the September 17 deadline for the US Senate to block American acceptance of the resolution, the Ayatollah made an ill-timed public statement predicting that Israel “won’t be around in 25 years[.]” This statement was clearly referencing a period of time within which Iran could successfully overcome the effects of the international sanctions and restrictions on its nuclear program by the JCPOA, and develop an actionable nuclear weapon. The statement eruditely left Iran’s direct participation in the destruction of the State of Israel to inference, but was timed specifically to instigate the right-wing in the US Senate and the Israeli government. A simple analogy is made from the statement to the launch of the missile, timed just a week before the Adoption of the JCPOA.

In the end, it is clear that none of the European powers, the US, UN, or Iran want to allow this launch, even if found to be of a missile ‘designed to be nuclear capable’, to destroy the hard-fought nuclear deal. Was the Ayatollah intentionally attempting to derail the agreement? Could he have just been catering to his conservative base by showing that any concessions he makes to support the deal will be in protest? Did he launch to send a little reminder to Israel before allowing his nuclear program to lay dormant?

Clearly, the future of peace and security in the region is too important to risk over a single missile launch. Only time will tell if any lasting effect will result from launch. It is unlikely that any action will be taken by the Security Council to reprimand Iran for launching, because this could cause a rift in the already tenuous partnership. As to the Ayatollah’s intentions? This author hopes that the launch was mere Putin-esq political puffery, destined to be relegated to the history books as the defining record of the most deadly weapon that Iran ever developed, never to be exceeded.

Jeremy S Goldstein is a 3L at the University of Denver – Sturm College of Law and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

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Credit: www.aufait.ma


* “Liberté, Égalité, Fraternité” is defined as a “principle” of the French Republic



Credit: www.aufait.ma

In 2010, France banned the wearing of the full-face veil in public pursuant to Law no. 2010-1192 of the 11th October 2010 (herein after as the Law). The Law strictly forbids anyone to conceal their faces in public places on pain of criminal sanctions (punishable by a fine of 150 euros maximum and an obligation to follow a citizenship course). Its application is not contingent to any religious practice and is limited in the subject matter:  only the concealment of the face is prohibited irrespective of the reason.

Still, the fact and the matter is, it primarily affects Muslim women wearing the full-face veil in public places and thereby of expressing their religious beliefs.

In 2014, a French national lodged a complaint before the European Court of Human Rights (herein after as ECtHR) against France claiming that the ban was depriving her of the exercise of certain rights protected in the European Convention of Human Rights (herein after as the Convention). The case called SAS v. France, has attracted numerous reactions in the academic world and reignited a long debate in France on the expression of religious beliefs in public. This article purports to understand the grounds upon which the applicant’s claim was dismissed and the ban upheld. For this purpose, we will later ask the opinion of Professor Maleiha Malik, Professor in Law at King’s College London, Author, Barrister and specialist on discrimination law.

In SAS v. France, the applicant alleged that there had been a violation of Article 3 (Prohibition of Torture and Inhuman Treatment), Article 8 (Right to a private and family life), Article 9 (Freedom of Thought, Conscience and Religion), Article 10 (Freedom of Expression) and Article 11 (Right to Protest and Freedom of Association) of the Convention, taken separately and together with Article 14 (Non-Discrimination) of the Convention.

The Court found the parts of the complaint based on Articles 3, 10 and 11 ill-founded and therefore inadmissible. The debate was more intense with regards to alleged violations of Articles 8 (Right to a private and family life), 9 (Freedom of Thought, Conscience and Religion) and 14 (Non-Discrimination) of the Convention.

The Court found the Law, as a measure which restricts a choice of clothing, constitutive of an interference with or a limitation of the exercise of the rights protected by Articles 8 and 9 of the Convention [para.110]. However, the limitation to the exercise of a freedom can only be justified by a legitimate aim as enumerated in the second paragraphs of Articles 8 and 9.

The French Government had two lines of defense:  First, the wearing of the full-face veil in public was banned on grounds of public safety. Second, the wearing of the full-face veil in public was banned on account of the principle of “vivre ensemble” (living together) and the respect for the minimum set of values of an open and democratic society.

Regarding public safety, the Court found that the ban could only be deemed proportionate in the context of a general threat to public safety [para. 139]. Yet, the arguments of the French government fell very short to demonstrate such a situation in France.

Finally, with respect to the second legitimate aim raised by France, the Court had to “link” it with the aim of protecting of the rights and freedoms of others enshrined in the second paragraphs of Articles 8, 9. On the latter, the Court stated that it falls within the powers of the State to secure the conditions whereby individuals can live together in their diversity and that a State may find it essential to give particular weight in this connection to the interaction between individuals and may consider this to be adversely affected by the fact that some conceal their faces in public places [para. 141]. Consequently, the ban was justified as far as it seeks to guarantee the conditions of “living together” [para. 142].

It must be noted here that the Court, compliant with its jurisprudence, afforded Frances a wide margin of appreciation in deciding upon what enters the realm of private or public interest (See ECHR – Evans v. the United Kingdom [GC]). As such, it does not determine at any point the legal or legitimate status of the wearing of the full-face veil in public with regards to the provisions of the Convention. Simply, it undertakes an analysis based on the particularities of the French society and its “compatibility” with the wearing of the full-face veil in public. And here lies the challenge!

Indeed, the Court dismissed the gender equality argument insofar as the practice at hand was defended by women. In addition, the public safety aim was also rejected although, arguably, a ban was possible for public safety reasons and growing extremism, as it is the case in some Muslim states and regions in the world (Chad, Congo, Muslim region of Xinjiang in China, banned and later relaxed in Syria etc…). In SAS v. France, the crux of the case laid in the fact that women decided on their own, for religious and other personal reasons to wear the full-face veil in public. Righteously, one can feel in discomfort at the first sight of a fully veiled women but discomfort is no harm.

As the Court admitted, the second legitimate aim raised by France (the principle of living together and the respect for the minimum set of values of an open and democratic society) is not listed in the articles of the Convention concerned.  However, one can argue that the concept of “living together” is non-legal per se and quite subjective. On this note, Professor Maleiha Malik, explains in The Return of a Persecuting Society (Malik, 2014), that “a value-based reasoning can construct certain religion as “radical” and incompatible with French citizenship” thereby forcing a compulsory clash of cultures.

Indeed, this principle of “living together” rests on the fact that France is based upon the constitutional principle of “Laïcité” :  as provided by the 1905 law, the State is separated from the Churches and must remained independent of any religious practice. Furthermore, the insertion of immigrants in France is based, since colonial time, on the idea of their assimilation to the French culture. In other words, immigrants are required to integrate with the dominant culture in place of individualistic self-identity. Consequently in the application of assimilation of immigrants, there is a French culture versus another culture :  a marriage of the two must automatically undermine one culture for the other to prevail.

By stating that wearing the full-face veil in public is “incompatible” with the idea of living together in the French society [para. 141], France takes a huge risk in trying to define a stagnant French society to which people should either integrate or be in conflict with it.

Professor Maleiha Malik notes in “Complex Equality :  Muslim Women and the ‘Headscarf’”, that the law has a constitutive role in society and plays an important p in constructing behaviour :  giving it sense and meaning, and influencing the self-interpretation of the participants. It is therefore very alarming to read that the rationale behind the ban, according to the Report of the French parliamentary commission, is that the full-face veil represented a denial of fraternity, constituting the negation of contact with others and a flagrant infringement of the French principle of living together – “vivre ensemble[para. 17].

I asked additional questions to Professor Maleiha Malik on this decision, cultural relativism and more. Here is what she had to say:

Alexandra Esmel (AE) : In SAS v. France, the French Government argued that the reciprocal exposure of faces was fundamental in French society to which the applicant responded that this argument failed to take into account the cultural practices of minorities which do not share this philosophy. Where do you draw the line, if you believe there is, between cultural relativism and multiculturalism.

Professor Maleiha Malik (MM) : I use the harm principle – if the practice is not causing substantial harm and it is freely chosen by an adult (as with the face veil) then what is the justification for using state coercion?”

AE : The main argument of the French Government in S.A.S argument is the principle of “living together” in the French society. The question is therefore whether or not you can force somebody to reveal their faces in public. Is that/ should it be a requirement in society? What are your views on the fact that there could be a social contract which require its participants to respect written (i.e. the law) and unspoken rules (politeness; revealing one‘s face)?

MM : “I think living together may be an important value or goal for a country. The problem with SAS v. France is that they recognised that her human right to wear the face veil is part of her freedom of religion that is protected, but they compromise this individual human right for the sake of the collective goal of living together. This is a serious contradiction of the principles of liberal constitutionalism that require us to give priority to individual human rights. I think a restriction on the face veil may be justified in some circumstances such as giving evidence or teaching in school etc, but it is wrong to have a vague general ban using the criminal law in all public spaces as in France.”

AE : The term “incompatible” was heavily cited in the decision and France insisted that the wearing of the full-face veil was “incompatible” with the French society and with the “objective of ensuring the social integration of groups of immigrant origin”. What are your thoughts on this? – Is the French Law of 11 October 2010 simply a reflection of France rejecting a societal change? Do you assimilate that notion of the “incompatible” to the “Bad Other” as explained in your introduction to Anti-Muslim prejudice in the West, past and present: an introduction?

MM :“ As I argue in my chapter, I think the French law is a product of far-right racism and exclusionary nationalism that has moved from the Front National [extreme-right French Party] far right into the mainstream. I believe the ban is harmful. It persecutes the women. It perpetuates discrimination. It is an authoritarian law.

The ECtHR noted itself in SAS v. France that the role of the authorities is not to remove the cause of tension [between groups] by eliminating pluralism, but to ensure that the competing groups tolerate each other. France is demographically changing and is meant to change with time. Only, the interaction of these changes with internal policy will shape the present and future identity of France.

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baby hatch_thumb

Critical Analysis: The Resurgence of the Modern Baby Box

Baby hatches (also called baby boxes) are not an entirely modern concept, as their use can be traced back to medieval times.  Their purpose has also largely remained the same: to allow a mother to anonymously leave the child in a safe and protected place, the baby box, when she feels she is not capable of providing for the child.  The child’s father or other family members can utilize the baby box as well.  Whether the mother is leaving the baby at a local hospital, church, or charity, mothers do so for different reasons, be it to avoid having an abortion or female infanticide (in some countries), or to leave an illegitimate or disfigured child in the care of others.  However, the resurgence of the baby box in numerous countries throughout Europe and Asia has spurred a hotly contested debate between the desire of the mother to leave the baby anonymously and the right of the child to discover the identity of his or her parents, a conflict that may never be resolved.

This is a baby hatch fixed in a wall near a hospital in Berlin, Germany. Image Source: AP

This is a baby hatch fixed in a wall near a hospital in Berlin, Germany. Image Source: AP

In Germany, there are nearly 100 baby boxes in existence.  Generally, the baby is cared for by the providers of the baby box before going through Germany’s legal system for adoption.  In some instances, a mother has the opportunity to return to the site where she left her baby and reclaim him or her within a certain time period.  After a set time, however, the mother cannot return to reclaim the baby and the adoption will be final.  However, the entire operation of baby boxes in Germany is at odds with the country’s laws.

Abandoning a baby is illegal in Germany, and the country’s Constitution provides its citizens with the right to know who their parents are and gives fathers a right to help raise their children.  So allowing the continued operation of the baby boxes falls within a legally gray zone, one that strongly nods towards the social policy that is the foundation of its existence.  Supporters of the baby boxes view them as a last hope for women who are unable to shoulder the burden of taking care of their baby.  Those in opposition believe that baby boxes send the wrong message to society that women can hide their pregnancies and then abandon their babies.  For now, Germany appears to be allowing the operation of the baby boxes despite strong criticism against their existence.

In France, the law gives women the right to have an anonymous birth and a right for their identity be kept secret from their child if they so desire.  The European Court of Human Rights upheld the law in 2003, stating it does not violate the European Convention on Human Rights.  However, the operation of baby boxes in France, Germany, and other countries clashes with the right of a child to know or preserve his or her identity, which is guaranteed in Article 8 of the United Nations Convention on the Rights of the Child.  Article 7 also gives a child the right, as far as possible, to know and be cared for by his or her parents.  If a country allows a mother to legally leave her child in a baby box, the child will never know the identity of his or her parents let alone be given the opportunity to be cared for by them.

The continuing conflict between the mother’s desire and (in some countries) right to give birth anonymously and the child’s right to know and be cared for by his or her parents is prevalent in not only Europe but other corners of the world as well.  Whether or not governments will continue to allow the operation of baby boxes in the midst of a debate with no clear right or wrong answer is yet to be determined.

Laura Brodie is a 2L and a Staff Editor on the Denver Journal of International Law and Policy

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Critical Analysis: Central African Republic Sees International Intervention

On December 5th, the UN Security Council unanimously authorized the deployment of French troops and the African Union Mission in Central Africa (MISCA) with the hopes of stemming the sectarian violence that is plaguing the Central African Republic.  On the 9th, the 1,600 French troops will attempt to begin disarming the fighting groups and restore order.  French Defense Minister is quoted saying that “first we’ll ask nicely, and if they don’t react, we’ll do it by force.” The Security Council also made it clear that the UN should be prepared to further bolster efforts in the CAR.  Provisions included requests that the Secretary-General undertake contingency preparations for the transformation of MISCA into a peacekeeping operation within three months.


French troops will begin efforts to restore order to the Central African Republic caused by violent Seleka rebel fighters. Image: AFP

In March of 2013, the existing government was ousted by the Seleka rebels when they seized the capital and leadership.  Since that time attacks on Christians and those loyal to the former Bozize regime by the predominantly Muslim Seleka forces have increased in number.  In response, self-defense groups known as “anti-balaka” have formed and perpetrated retaliatory violence.  Consequently, an environment of fear prevails throughout the CAR and the populace is divided along religious lines.  In the day preceding the passage of the UNSC resolution, more than 100 were killed in the capital of Bangui alone.  According to the Red Cross, an additional 394 were killed on the following Sunday.

Atrocities committed by both sides of the conflict rise to the level of war crimes according to investigators from the UN and Human Rights Watch. The problems confronted by the Central African Republic are compounded by the absence of stability and central governance.  The African Union Mission MISCA and the potential for an expanded UN peacekeeping mission are directed at building local capacity.  The United States has made a $40 million dollar financial contribution to MISCA because of this concern specifically as seen in a statement from US Secretary of State John Kerry, “The United States sees no evidence that the CAR transitional government has the capacity or political will to end the violence, especially the abuses committed by elements of the Seleka rebel alliance that are affiliated with the government.”

The coming weeks and possibly months will demonstrate whether the French forces can help bring stability to the CAR.  Some of the problems confronted by peacekeepers will be dealing with the religious tensions, the potential for trafficking in conflict minerals, and trying to neutralize largely de-centralized fighting forces.  The UNSC asked that all States take measures to prevent the sale or transfer of weapons, supplies, and funding to fighting groups in the CAR.  Regardless of what manifests in the future for the Central African Republic, a clear international mandate has been expressed with the hopes of restoring order, stopping the ongoing violence, and preventing future conflicts.

Jordan Edmondson is a 2L and a Staff Editor for the Denver Journal of International Law and Policy.

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The Netherlands became the first country to legalize same-sex marriage in December 2000. (The Pew Forum)

Critical Analysis: Same-Sex Marriage Globally – Where Does the U.S. Stand?

The Netherlands became the first country to legalize same-sex marriage in December 2000. (The Pew Forum)

The Netherlands became the first country to legalize same-sex marriage in December 2000. (The Pew Forum)

This month, France’s and Britain’s Parliaments are voting on same-sex marriage laws that will re-define the institution of marriage. France’s Socialist party voted to define marriage as an agreement between two people of the same or opposite sex. Although the proposed laws are currently met with opposition from many conservative parties, both countries are poised to legally recognize same-sex marriage, with the French National Assembly expecting to pass the measure on Febraury 12th.  Britain is expected to follow the footsteps of France shortly thereafter, as evidenced by overwhelming support for the measure from the British House of Commons during a February 5th vote. The world-wide attention surrounding this hot-button issue emphasizes the building anticipation for the United States Supreme Court’s hearing of Hollingsworth v. Perry and U.S v. Windsor, both controversial same-sex marriage cases scheduled for oral argument in late March.

In 2001, The Netherlands became the first country in the world to legally recognize same-sex marriage, gaining tremendous support from the Dutch Parliament in a 107-33 vote. Several countries followed suit shortly after, including Belgium, Spain, Canada, Sweden, South Africa and Norway. To date, around a dozen countries legally support same-sex marriage. Most recently, last June, Denmark supported a gender neutral bill allowing gay marriages through church weddings or civil registry; although, Denmark was the first nation to legalize same-sex unions in 1989. Nepal is also on course to legalize same-sex marriage.

While many nations still do not permit same-sex individuals to marry, and some still even criminalize same-sex relations, there is a mounting trend globally towards ending marriage inequality. Evan Wolfson, Founder and President of Freedom to Marry, stated: “With France, England and Wales poised to become the next countries to embrace the freedom to marry, it’s clear that the momentum we see here in the United States for ending marriage discrimination is, in fact, a global movement toward greater freedom.” Furthermore, the United Sates “cannot afford to fall behind its closest allies and trade partners in this global economy.”

President Obama’s statements last May supporting gay marriage, in which he recognized “the fact that – for a lot of people – the word marriage is something that provokes very powerful traditions and religious beliefs, ” had hugely significant political effects. President Obama reinforced his position by becoming the first President to address gay marriage rights in his inauguration speech. While some states have passed freedom to marry laws, the U.S. Supreme Court’s decisions in the upcoming cases, which address both the constitutionality of the Defense of Marriage Act and California’s same-sex marriage ban, will shed light on the momentum of gay marriage rights at the federal level.

The global landscape of marriage equality has gradually shifted since the beginning of the 21st Century. With the anticipated addition of both France and Britain to the ranks of those countries that legally support gay marriage, more pressure is placed on United States to end marriage discrimination.

            Lydia Rice is a 2L and a Staff Editor on the Denver Journal of International Law and Policy

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Armed Islamist fighters race near the Mauritania-Mali border on May 21st. (Magharebia)

Critical Analysis: French President Visits Mali as French Troops Battle Islamist Militants

Armed Islamist fighters race near the Mauritania-Mali border on May 21st. (Magharebia)

Armed Islamist fighters race near the Mauritania-Mali border on May 21st. (Magharebia)

On February 2nd, French President Francois Hollande visited Mali, where French forces have been battling Islamist militants.  “We are serving a cause defined within the United Nations’ framework … to bring the entire Malian territory under the legitimate authority of the Malian president and then the leaders who will be elected by the Malians,” stated Hollande.  Mali, a former colony of France, requested French assistance as Islamist militants seized Konna on January 10.  After a military coup, Islamic extremists took over much of Northern Mali last year.  With France’s assistance, the key cities of Konna, Timbuktu, and Gao are now back under Malian control. 

Mali achieved independence from France in 1960, and after years of being ruled by military dictators, the country held democratic elections in 1992.  In 2012, however, Malian soldiers led a coup and overthrew the democratically elected leader, resulting in a power vacuum that allowed militant Islamist groups to seize control of northern Mali.  The Islamists had joined forces with the Tuaregs, a historically oppressed nomadic group from Northern Mali.  In 2012, as the Islamists pushed south, France responded to the pleas for assistance from the Malian Government, and has since reclaimed many seized cities.

The Islamists established strict Sharia law as they seized cities from the North and began pushing their way South, threatening Mali’s capital city, Bamako. Human rights groups claim that floggings, rapes, killings, and other torture are rampant in these areas.  Mali Minister of Justice Malick Coulibaly referred the situation to the International Criminal Court, and “the ICC Prosecutor has responded to the referral by announcing that her office will conduct a preliminary examination to determine whether an investigation should be opened.”

The militant Islamists in Northern Mali are allegedly the same group responsible for the recent hostage crisis in Algeria, which resulted in the deaths of twenty-three hostages and at least one American.  Mokhtar Belmokhtar , a militant who has sworn allegiance to Al-Qaeda in the Islamic Maghreb (AQIM) claimed responsibility for the crisis.  The Islamist group operating in Northern Mali, Ansar Dine, is backed by AQIM, and some believe that the hostage crisis in Algeria was fueled by France’s intervention in Mali.

Although the United States is increasing its involvement in Mali, U.S. policy prohibits direct financial assistance to the Malian Government because the current Government is in place as a result of a military coup.  However, the U.S. Air Force “has flown at least seven C-17 cargo missions into Mali, carrying 200 passengers, mainly French troops, and 168 tons of equipment,” according to Pentagon spokesman Major Robert Firman.  The United States’ increased assistance is considered legal because France notified the United Nations Security Council “that its mission in Mali is being offered at the request of the African country’s government, which is fighting ‘terrorist elements,’” claims Pentagon spokesman Lt. Col. James Gregory.

Lisa Browning is a 2LE at the University of Denver Sturm College of Law and a Staff Editor on the DJILP. 

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Group 11 Blog Post(2)

Critical Analysis: Mali’s Plea for Help Results in French Troops

Group 11 Blog Post(2)

Fighters of the Islamic group Ansar Dine standing guard at Kidal airport in northern Mali. (CNN)

After a plea from Mali’s interim president, Dioncounda Traoré, French troops were sent in last Thursday to help combat an Islamic group, closely associated with Al Qaeda, that has taken over parts of Northern Mali. The group has instituted Shariah Law in the region, dealing out harsh punishments such as hand and feet amputations, whippings, and even in one reported case, the stoning of a couple who was accused of having children out of wedlock. The police chief cut off his own brother’s hand as his brother was strapped to a chair, stating “[w]e had no choice but to practice the justice of God.” Despite international threats and the United Nations Security Council approval to initiate a military campaign to drive out the group, these rebels seem undeterred.

Mali, originally a French territory, gained its independence in 1960 and held its first democratic election in 1992. The country, however, has faced turmoil over the years resulting in government coups. The Islamic extremist are just the last in a line of those who have gained power, taking over two –thirds of northern Mali last year.

The U.N.-approved plan originally involved a retrained Mali army, backed by African troops from the Economic Community of West African states, entering the region and retaking the area. The European Union was to help train the troops and France was to serve as a guide, with the United States providing intelligence and airborne reconnaissance. The plan, however, has been slow to commence. France was never intended to be involved in the actual fighting, but the situation seems to have changed. The French president took sudden action by sending in troops on Thursday. The action was meant to be a “sudden blow” to the rebels and a short-lived involvement. Instead, it has turned into a “drawn-out military and diplomatic operation.” When asked about France’s unexpected involvement, a French official stated that the alternative is “another Somalia.”

The African countries that committed troops are finding it difficult to get their operations off the ground. Many believe that France’s action will stimulate the slow process and force European and African countries to move at a faster pace. However, others are asking why France took such action in the first place.

Despite some criticism, the entire African region supports the involvement along with various European countries. David Cameron, Prime Minster of the United Kingdom, stated on Friday that “those who believe that there is a terrorist, extremist Al Qaeda problem in parts of North Africa, but that it is a problem for those places and we can somehow back off and ignore it, are profoundly wrong.”

Lina Jasinskaite is a 3L at the University of Denver, Sturm College of Law and a staff editor at the Denver Journal of International Law and Policy.

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And you thought your taxes were high.

Critical Analysis: A Fiscal Cliff Leading to Where?

Midnight, January first marks the twilight hour for Americans who have been holding their breath before taking the plunge that is the fiscal cliff. This cliff was meant to serve as a deterrent for Republicans and Democrats to reach a mutual compromise and avoid immediate spending cuts and tax hikes. However, both sides refused to work together until New Year’s Day when they were finally able to pass legislation with a House vote of 257 in favor and 167 against. This legislation responded to concerns about tax hike but delayed talks on spending cuts for another two months. In his White House remarks following the Bill’s passage, President Barack Obama was happy to announce that he “will sign a law that raises the taxes on the wealthiest of Americans . . . while preventing a middle-class tax hike.” But, with an increased tax rate on individuals who earn over $400,000 and households that bring in over $450,000, where do these increases end?

And you thought your taxes were high.(Telegraph)

And you thought your taxes were high.

In France, President Francois Hollande’s – at least temporary – solution to his country’s budget problem is also to tax the wealthiest French, like Obama is doing in the United States. Hollande’s proposal is to hike up taxes to a staggering 75% for those who make over €1 million and a comparatively small, yet still startling number of 45% for those who make over €150,000. However, despite these seemingly outrageous increases, this plan is only expected to save around €30billion, which would only lower the French deficit from 4.5% of national output this year to 3% next year.  Not to mention that this plan is only predicted to raise around €500 million: a modest sum for such a shocking tax. And like the United States, France is also crippled by record unemployment and fears of economic stagnation. People are worried that the French government’s harsh tax rates will block innovation and force the super wealthy to move elsewhere.

On December 29, 2012, the French President’s 75% tax rate was struck down as unconstitutional. Mr. Hollande himself even acknowledged that the “75 percent rate was always a symbolic political gesture,” as it was set to expire in a few years and as currently written would only affect a few thousand taxpayers. Additionally, the estimated modest tax revenues were not expected to solve any of France’s major monetary problems, and would act as “little more than a bucket of water in France’s deficit sea,” which reached around €85 billion this year alone. The tax was ruled unconstitutional because it “applied unevenly to different households with the same combined income.” For example, a household with a combined income of €1.7 million would be exempt from the tax so long as no one individual made over €1 million. Once an individual earns over the €1 million benchmark, the entire household is taxed 75% on their combined income. Building on concerns that the tax would force wealthy French citizens to leave the country in pursuit of a new home country that would not so severely tax their earnings, estimates have come out reporting that at least 5,000 wealthy citizens would plan on leaving France if the tax was passed. Award winning French actor Gérard Depardieu is rumored to be one of those packing his bags Belgium, where the maximum tax rate is only 50% of income. But for now, the 75% tax hike is invalidated but the 45% tax rate for those making over €150,000 remains in play.

Even after the invalidation of his high tax plan, the French Socialist President remains adamant about keeping the spirit of the tax alive and maintains that France “will still ask more of those who have the most.” One political consultant observed that “[g]iving up the 75 percent tax without a fight would be an admission of weakness.” However, others remain skeptical of the tax and argue that going forward with Hollande’s plan, even in a modified form, would amount “to turning France into Cuba without the sunshine.” It seems that Hollande, like Obama, metaphorically remains between a rock and a hard place when it comes to taxes and the right path to take moving forward.

After reaching a compromise to temporarily stall the fall over the fiscal cliff, Americans are left wondering where they are to go from here? Is a super high tax increase, like the one in France, in their future? Or is there a better path to take? For now, the answer remains unclear. But one thing is for certain: Americans and the French must both be able to repay their current debts to the international community. Constantly increasing tax rates on the wealthy, however, creates disincentives for people to work hard. And people working hard to earn more and therefore spend more money would add to overall revenue in the future. If simply raising taxes every few years continues to be the trend, citizens might start evading taxes, like in Italy, or decide to work significantly less and force other people to pick up the slack. While one can certainly argue the merits of raising taxes in certain instances, it becomes harder during economic recessions. This disheartening future, where people work less and get paid less, would certainly prove disastrous for governments if tax evasion becomes a desirable alternative for citizens. For now, both the Americans and the French need to keep their eyes to the future and not confuse short-term gains with long-term sustainable reform.

Mara Essick is a 2L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International and Policy.

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University of Denver Sturm College of Law