4 - The Conditionality of Human Rights

Summary

So, far from being universal and equally applied, human rights are conditional. They are inaccessible to some marginalised, vulnerable groups whose need for protection is especially pressing. The Court’s upholding of national bans sends a clear message that covered Muslim women cannot get protections from judicial human rights to express their religious identity in the secular public space. An obvious reason for this is their ambiguous citizenship status – Muslim women acting religiously in a secular context are disrupting the social order and deemed unacceptable citizens despite their formal citizenship status. This partly reflects the fraying of sovereignty and narrower and more isolationist thinking, rendering citizenship more fragmented than cosmopolitan, obeying a hierarchy of statuses regardless of formal membership so that some groups do not enjoy full citizenship or access to human rights protections (Benhabib, 2004). Talk about human rights trumping national citizenship and the latter being less relevant in the new global environment after the end of history era was precipitate: There has been no levelling out of justice, but a multiplication of status groups holding varying rights, where a hierarchy of statuses means that super-citizens’ access is guaranteed, whereas marginal, quasi, sub and un-citizens have uncertain or negligible rights (Nash, 2009).

Judicial human rights in Europe have hijacked national security agendas that have embedded this unequal access to human rights – especially for those asserting religious freedom – excluding certain minorities from being rightful members of a particular polity. The fusing of citizenship and human rights protections has been reversed by a rigid boundedness so that all it takes to disrupt the potential political and legal connection between citizenship and human rights is a national security crisis which mobilises securitisation processes that exclude some groups – those constructed as a threat – from basic rights (Banai and Kreide, 2017). The ECtHR’s refusal to protect Muslim women stems from the existential insecurity of European Union (EU) member states created by insecurities accompanying national and supra-national conflicts, which have been absorbed by the Court, exempting it from the erosion of citizenship (Heindl, 2017). This existential insecurity provides fertile soil for the revival of paternalistic nationalism, which, as we have seen, routinely regulates dress, and especially targets women thought to undermine national identity.