Opening up the European Convention human rights subject : an inclusive multilayered framework for adjudicating religious and cultural claims

Like many courts in Europe and elsewhere, the European Court of Human Rights (the "Court" or the "Strasbourg Court") has been grappling with the challenges posed by contemporary cultural and religious diversity. Applicants from a variety of cultural and religious backgrounds have increasingly brought longstanding conceptions underlying the Court's legal reasoning under growing pressure: from Sikh men wanting to wear the turban to Roma members seeking to preserve their travelling lifestyle and Muslim women battling headscarf bans. Three provisions of the European Convention on Human Rights ("ECHR") have been the site where this pressure has been most vividly felt: non-discrimination (Article 14 ECHR), freedom of religion (Article 9 ECHR), and the right to respect for one’s cultural lifestyle (Article 8 ECHR). For the most part, however, the Court has failed to rise to the challenge. At times, these types of claims have been met with neglect; at others, with trivialization and even delegitimation. This dissertation addresses these shortcomings in the legal reasoning of the European Court of Human Rights. The research is motivated by two sets of questions. At a descriptive level, the questions are: What are the assumptions or conceptions implicitly defining the European Convention human rights subject ("ECHR subject"), against which religious and cultural claimants are judged? In particular, which experiences, features or views are regarded as essential or "universal" in the construction of this subject and which ones are marginalized as invisible, negligible or "particular"? Moreover, what kinds of consequences do these assumptions carry for religious and cultural applicants and their groups? Do they create exclusions and hierarchies between them? If so, what forms or shapes do such exclusions and hierarchies take and at what levels do they occur (e.g., within groups, across groups)? At a normative level, the research questions are: Should the Court avoid these exclusions and hierarchies – or open up these "universals"? If so, on what basis and how exactly might the Court do this? The dissertation proceeds in three major parts, each of which identifies "universals" in the ECHR subject at a different level. First, it identifies exclusions and hierarchies within the abstract category of "human". It argues that the Court has, to some extent, opened up the abstract universal human rights subject by acknowledging the constructed vulnerability of some groups. Yet traces of invulnerability foreclose fuller inclusion of cultural and religious group members. Second, the dissertation identifies exclusions and hierarchies within the religious and cultural ECHR subject, that is to say, across different religious and cultural groups. The dissertation argues that operating as one of the "universals" of freedom of religion is a Protestant, belief- centered notion of religion, which favors internal and disembodied forms of religious subjectivity over external and embodied ones. The dissertation further unveils one of the "universals" embedded in the right to respect for family life: the nuclear family idealized in some parts of Western Europe that disadvantages other forms of family life. Last, the dissertation identifies exclusions and hierarchies within sub-religious and sub-cultural ECHR subjects, namely within groups. It shows how such exclusions and hierarchies arise from elevating a particular cultural or religious practice to the norm, as if it were the group paradigmatic practice. This practice is subsequently either fixed as the "essence" of group identity or associated with negative stereotypes. The dissertation puts forward two central arguments. The first argument is that, in articulating the ECHR subject, the Court endorses various "universals" that hamper the full and equal inclusion of a range of religious and cultural "others". Though these "universals" may manifest themselves in various forms and take place at different levels, they all respond to the same exclusionary logic: the experiences of some are confused with the experiences of all and posited as the yardstick against which everyone is judged. Indeed, the hidden (and not so hidden) workings of such "universals" have not just led to the trivialization and marginalization of applicants' experiences. Most worryingly, these workings have sometimes led to the devaluation or delegitimation of these experiences. The second central argument of this dissertation is that the Court should redress the exclusionary and inegalitarian character of such "universals". To this end, the dissertation offers a multilayered framework aimed at opening up the ECHR subject at the three levels identified above: (i) within the abstract human rights subject; (ii) across religious and cultural groups; and (iii) within religious and cultural groups. In so doing, the framework intends to more fully realize religious and cultural equality in European Human Rights Convention Law.

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