Multiculturalism and its discontents

Human Rights Law Review

Volumn 5, Issue 1, 2005, Pages 27-56

  McGoldrick, Dominic ^a  

^a UNIVERSITY OF LIVERPOOL   (United Kingdom)

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[No Author keywords available]

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EID: 23944519477     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlrev/ngi002     Document Type: Review

References (207)

1. See van den Burghe, 'The EU and the Protection of Minorities: How Real is the Alleged Double Standard', (2003) 22 Yearbook of European Law 155.
2. See also Wallace and Shaw, 'Education, Multiculturalism and the Charter of Fundamental Rights of the European Union', in Hervey and Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights: A Legal Perspective (Oxford: Hart, 2003) 223.
3. See Watson, Multiculturalism (Buckingham: Open University Press, 2000);
4. Parris, 'Multiculturalism. A Dangerous Word Just Like Apartheid', The Times, 24 January 2004.
5. See Delanty, Community (London: Routledge, 2003) at 92-110, discussing 10 main models of multiculturalism (monoculturalism, republican multiculturalism, pillarisation, liberal multiculturalism, communitarian multiculturalism, liberal communitarian multiculturalism, interculturalism, radical multiculturalism and transnational multiculturalism);
6. Delanty, 'The Limits of Diversity: Community Beyond Unity and Difference', in Christiansen and Hedetoft (eds), Multiple Belongings in Europe and Asia (Aldershot: Ashgate, 2004) 45.
7. See Wieviorka, 'Is Multiculturalism the Solution?', (1998) 21 Ethnic and Racial Studies 881.
8. '[A]ny attempt to talk about cultural issues in terms of rights may be slippery and difficult. Culture is not a static concept: Cultures change all the time': Prott, 'Cultural Rights as People's Rights', in Crawford (ed.), The Rights of Peoples (Oxford: Oxford University Press, 1988) 93 at 95.
9. See Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. edn (London: Verso, 1991).
10. See Prott, supra n. 5, who stresses the need for further analysis of the complexities of cultural policy before framing issues in terms of human rights.
11. Countries such as India have been debating legal and political models for multiculturalism for some time. Such debates can be very instructive in approaching the issue and learning lessons from past practice. For an excellent example see Mullally, 'Feminism and Multicultural Dilemmas in India: Revisiting the Shah Bano Case', (2004) 24 Oxford Journal of Legal Studies 671.
12. For example, the arrest of thousands of Muslims in the US and elsewhere, and the rise of far Right parties in Western Europe accompanied by an increasing number of racist attacks. On the former see Cheng and Kabat, 'A Summary of Recent Court Rulings on Terrorism-Related Matters Having Civil Liberties Implications' (New York, Center for Constitutional Rights, updated to March 2004), available at http://www.ccr-ny.org/v2/ reports/report.asp?ObjID=n7yKoAObvc&Content=324.
13. On the latter see Gearty, 'The Internal and the "Other" in the Union Legal Order: Racism, Religious Intolerance and Xenophobia in Europe', in Alston (ed.), The EU and Human Rights (Oxford: Oxford University Press, 1999) 327.
14. See the constitutional case law considered in Raday, 'Culture, Religion, and Gender', (2003) 1 International Journal of Constitutional Law 663; and the case of Ludin v Baden Württemberg 2 BvR 1436/02, NJW 2003, 3111, where it was held that internal state parliaments in a federal system could pass laws banning the headscarf. A number of them subsequently did so. In June 2004, the Federal Administrative Court upheld the action by one of the states.
15. See Schiek, 'Just a Piece of Cloth? German Courts and Employees with Headscarves', (2004) 33 Industrial Law Journal 68.
16. R on the application of Shabina Begum (through her litigation friend Sherwas Rahman) v The Headteacher and Governors of Denbigh High School [2004] EWHC 1389 (Admin); [2004] ELR 374, in which the High Court upheld a school's uniform policy that did not allow for the wearing of the jilbab (long cloak). The Appeal Court allowed an appeal on the basis that the school approached the issues in the wrong way. It accepted that the school might still be able to justify its decision. See R on the application of Shabina Begum v The Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199.
17. See the decision of the ECtHR in Application no. 44774/98, Leyla Sahin v Turkey, Judgment of 29 June 2004, where the ECtHR held that a headscarf prohibition in the University of Istanbul did not violate Article 9, ECHR. However, the case has been accepted for referral to the Grand Chamber and a decision is awaited. See ECtHR Press Release, Cases Accepted for Referral to the Grand Chamber, 22 November 2004.
18. See Toivanen, 'Death, Ri(gh)tes, and Institutions in Immigrant Switzerland', in Scheinin and Toivanen (eds), Rethinking Non-Discrimination and Minority Rights (Turku/Abo: Institute for Human Rights, 2004) 201.
19. See Harvey, Human Rights, Equality and Democratic Renewal in Northern Ireland (Oxford: Hart, 2001).
20. Article 3 of the Constitution of Ireland as amended, available at www.taoiseach.gov.ie/upload/static/256.pdf.
21. See MacLaughlin, 'Racism, Ethnicity and Multiculturalism in Contemporary Europe: A Review Essay', (1998) 17 Political Geography 1013.
22. See Grillo, 'Immigration and the Politics of Recognizing Difference in Italy', in Grillo and Pratt (eds), The Politics of Recognizing Difference: Multiculturalism Italian Style (Aldershot: Ashgate, 2002) 1.
23. See Delanty, 'The Limits of Diversity', supra n. 3.
24. See Kivisto, Multiculturalism in a Global Society (Oxford: Blackwell, 2002);Globalization and its Impact on the Full Enjoyment of Human Rights, Final Report, UN Sub-Commission on the Promotion and Protection of Human Rights, 25 June 2003, E/CN.4/Sub.2/2003/14;and Chapter 5 'Globalization and Cultural Choice'.
25. Human Development Report 2004 (New York: UNDP, 2004)
26. See Taylor, Multiculturalism and the Politics of Recognition, 1st edn (Princeton: Princeton University Press, 1992)
27. Shachar, 'The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority', (2000) 35 Harvard Civil Rights: Civil Liberties Law Review 385;
28. Mayo, Cultures, Communities, Identities (Basingstoke: Palgrave, 2000) at 1-35. 'Culture is a macroconcept because it is definitive of human society'
29. Raday, supra n. 10 at 665. Postmodern analysis would suggest that most individuals are part of a number of cultures.
30. To put this another way, much depends on who has a voice, for whose interests they claim to speak and which voices are listened to. speak and which voices are listened to.
31. See Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University Press, 2002)
32. Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Durham: Duke University Press, 2002)
33. Prott, supra n. 5.
34. See Thornberry, International Law and the Rights of Minorities (Oxford: Oxford University Press, 1991).
35. I bi d.
36. See Freeman, 'Past Wrongs and Liberal Justice', (2002) 5 Ethical Theory and Practice 201.
37. See Welhengama, Minorities' Claims: From Autonomy to Secession (Aldershot: Ashgate, 2000)
38. Thornberry, 'Self-Determination, Minorities, Human Rights: A Review of International Instruments', (1989) 38 International and Comparative Law Quarterly 867.
39. See McGoldrick, 'The Development of the Conference on Security and Co-operation in Europe after the 1992 Conference', (1993) 42 International and Comparative Law Quarterly 411. The High Commissioner for National Minorities has acknowledged that there is a norm deficit when it comes to the practical application of minorities', provisions in such spheres as elections, education and language.
40. For attempts to address the deficit see Eide, 'Cultural Rights and Minorities', in Alfredsson and Stavropolou (eds), Justice Pending: Indigenous Peoples and other Good Causes. Essays in Honour of Erica-Irene A. Daes (The Hague: Nijhoff, 2002) 83.
41. See Koenig, 'Democratic Governance in Multicultural Societies: Social Conditions for the Implementation of International Human Rights Through Multicultural Policies', Discussion Paper No. 30, (1999) 2 Management of Social Transformations to be found at www.unesco/most/ln2pol2.htm
42. Wheatley, 'Deliberative Democracy and Minorities', (2003) 14 European Journal of International Law 507.
43. See Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Nijhoff, 1993);
44. Eide, supra n. 28 at 95-6.
45. See also the critique by Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002).
46. 99 UNTS 171.
47. GA Res. 47/135, 18 December 1992, A/RES/47/135.
48. ETS 157; 2 IHRR 217 (1995) See Thornberry and Estebanez, Minority Rights in Europe (Strasbourg: Council of Europe, 2004).
49. See Thornberry, supra n. 23.
50. Habermas identifies religious tolerance as an early model of multiculturalism. See Habermas, 'Intolerance and Discrimination', (2003) 1 International Journal of Constitutional Law 2.
51. The obvious explanation is that the term was not widely used before the late 1960 s, whilst the two international covenants on human rights were adopted in 1966.
52. GA Res. 217A(III), 10 December 1948, A/810 at 71.
53. See also Article 15(2), ICESCR referring to the diffusion of culture by states; Article 13(c), Convention on the Elimination of Discrimination against Women 1979 (CEDAW), 1249 UNTS 13; Article 31, Convention on the Rights of the Child 1989, 1577 UNTS 3.
54. On the interpretation of culture in Article 27, ICCPR, see McGoldrick, 'Canadian Indians, Cultural Rights and the Human Rights Committee', (1991) International and Comparative Law Quarterly 658.
55. See Renteln, International Human Rights: Universalism versus Relativism (Newbury Park, CA: Sage, 1990)
56. Harris-Short, 'International Human Rights Law: Imperialist, Inept and Ineffective? Cultural Relativism and the UN Convention on the Rights of the Child', (2003) 25 Human Rights Quarterly 130.
57. See An-Naim (ed.), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia: Philadelphia University Press, 1992)
58. Bell, Nathan and Pelley (eds), Negotiating Culture and Human Rights (New York: New York University Press, 2001).
59. This wording is drawn from para. 5 of the Vienna Declaration and Programme of Action of the World Conference on Human Rights 1993, (1993) 32 International Legal Materials 1661; 1-1 IHRR 240 (1994).
60. See World Commission on Culture and Development, Our Creative Diversity (Paris: UNESCO, 1995); UNESCO Universal Declaration on Cultural Diversity, adopted 2 November 2001.
61. See Eriksson, 'Between Universalism, and Relativism: A Critique of the UNESCO Concepts of Culture?', in Cowan, Dembour and Wilson (eds), Culture and Rights: Anthropological Perspectives (Cambridge: Cambridge University Press, 2001) 127.
62. Ibid. at 141-2.
63. For the text being discussed. Our Creative Diversity, see supra n. 43.
64. This is the situation in France. See the Human Rights Committee's Concluding Observations on France, 4 August 1997, CCPR/C/79/Add.80 at para. 24.
65. Kelly, 'Introduction: Between Culture and Equality', in Kelly (ed.), Multiculturalism Reconsidered (Cambridge: Polity, 2002) 1 at 3.
66. Article 3 of the Constitution of Ireland as amended, available at www.taoiseach.gov.ie/upload/static/256.pdf.
67. Scheinin and Toivanen, supra n. 14
68. McColgan, 'Principles of Equality and Protection from Discrimination in International Human Rights Law', [2003] European Human Rights Law Review 157.
69. See Jones, 'Human Rights and Diverse Cultures: Continuity or Discontinuity?', in Caney and Jones (eds), Human Rights and Global Diversity (London: Cass, 2001) 27, who writes: 'the rights commonly claimed for human beings would include rights to express and to pursue ... differences ... Note it is not human diversity in general that is troublesome for a theory of human rights. The troubles are caused by a particular type of diversity: Diversity of belief and value' (at 27-8).
70. See also Kukathas, 'Are there any Cultural Rights?', (1992) 20 Political Theory 105, who argues for the liberty to exit a group.
71. See also Rosas, The Strength of Diversity: Human Rights and Pluralist Democracy (Dordrecht: Kluwer, 1992).
72. See Gill, 'Autonomy, Diversity and the Right to Culture', in Leiser and Campbell (eds), Human Rights in Philosophy and Practice (Aldershot: Ashgate, 2001) 285, who writes: 'cultural membership as an expression of autonomy implies the presence of critical reflection ...' (at 298).
73. Handyside v UK A 24 (1976); (1979-80) 1 EHRR 737 at para. 49.
74. Xanthaki, 'Collective Rights: The Case of Indigenous Peoples', in Leiser and Campbell (eds), supra n. 51, 303 at 311.
75. See Eide, supra n. 28.
76. For attempts to address the deficit see Eide, 'Cultural Rights and Minorities', in Alfredsson and Stavropolou (eds), Justice Pending: Indigenous Peoples and other Good Causes. Essays in Honour of Erica-Irene A. Daes (The Hague: Nijhoff, 2002) 83.
77. See Sieder, 'Introduction', in Sieder (ed.), Multiculturalism in Latin America (Basingstoke: Macmillan, 2002) 1 at 4.
78. Human Development Report 2004 (New York: UNDP, 2004) at vi.
79. Ibid. at v.
80. For an attempt to articulate where the line should be drawn with respect to illiberal cultures, see Rawls, The Rights of Peoples, with the Idea of Public Reason Revisited (Cambridge, MA/London: Harvard University Press, 1999).
81. See also An-Naim, 'Towards a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Treatment or Punishment',in An-Naim (ed.), supra n. 41, 19.
82. Spinner-Halev, 'Feminism, Multiculturalism, Oppression, and the State', (2001) 112 Ethics 84.
83. Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon, 1991).
84. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon, 1996).
85. See also McDonald, 'Should Communities have Rights? Reflections on Liberal Individualism', in An-Naim (ed.), supra n. 41, 133.
86. See Malik, 'Communal Goods as Human Rights', in Gearty and Tomkins (eds), Understanding Rights (London: Mansell, 1996) 138.
87. See Freeman, supra n. 26
88. Habermas, 'Multiculturalism and the Liberal State', (1995) 47 Stanford Law Review 849.
89. Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Basingstoke: Macmillan, 2000).
90. See Cohen, Howard and Nussbaum (eds), Is Multiculturalism Bad for Women? Susan Muller Okin with Respondents (Princeton: Princeton University Press, 1999)
91. Volp, 'Feminism versus Multiculturalism', (2001) 101 Columbia Law Review 1181
92. Schachar, Multicultural Jurisdictions: Cultural Differences and Women's Rights (Cambridge: Cambridge University Press, 2001)
93. Mullaly, supra n. 8.
94. '... multiculturalism not only exacerbates and legitimises the oppression of already oppressed minority groups, but poses threats to liberal democracy and individual human rights', Beckett and Macey, 'Race, Gender and Sexuality: The Oppression of Multiculturalism', (2001) 24 Women's Studies International Forum 309 at 309.
95. Alibhai-Brown, After Multiculturalism (London: Foreign Policy Centre, 2000).
96. 'Debate Call on "Multicultural" UK', BBC News, 5 April 2004, available at http://newssearch.bbc.co.uk/1/hi/uk_politics/3599925.stm.
97. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, MA: Harvard University Press, 2002).
98. See Kelly, supra n. 47, which includes a reply by Barry to his critics, at 204-38.
99. Raday. supra n. 10 at 697
100. Delanty, Community, supra n. 3 at 99.
101. Delanty, 'The Limits of Diversity', supra n. 3 at 45.
102. This has been the case notwithstanding that the idea of the concept of 'race' having any scientific meaning has itself greatly been undermined.
103. See Howland, 'The Challenge of Religious Fundamentalism to the Liberty and Equality of Women: An Analysis under the United Nations Charter', (1997) 35 Columbia Journal of Transnational Law 272.
104. See Mitchell, 'Educating the National Citizen in Neoliberal Times: From the Multicultural Self to the Strategic Cosmopolitan', (2003) 28 Transactions of the Institute of British Geographers 377, who discusses the strategic use of diversity for competitive advantage in the global marketplace.
105. '[M]any critics ... believe that radical multiculturalism is racist in conception since its key element is the proposition of essential difference (exactly in contradiction with human rights philosophy which posits sameness or equality)', Delanty, Community, supra n. 3 at 105
106. '"View from the Right": Special Report - Race Issues in the UK', Guardian, 29 May 2001.
107. See Wieviorka, 'Is Multiculturalism the Solution?', (1998) 21 Ethnic and Racial Studies 881 at 907
108. Martiniello, 'Wievorka's View on Multiculturalism: A Critique', (1998) 21 Ethnic and Racial Studies 911.
109. See Makkonen, 'Is Multiculturalism Bad for the Fight against Discrimination?', in Scheinin and Toivanen (eds) supra n. 14, 155.
110. In May 2004, Abu Hamza was arrested and detained pending an extradition request from the United States for him to face serious terrorist charges. The request claims he has been in contact with high-ranking Taliban and Al-Qaida terrorists, and that he helped militants who took 16 westerners hostage in Yemen in 1998. It also alleges he tried to set up a training camp for jihad in Oregon. In August 2004 he was arrested under the UK's Terrorism Act 2000 on suspicion of involvement of the commission, preparation or instigation of acts of terrorism. He was subsequently charged with 16 offences, including soliciting murder and racial hatred and crimes under the Terrorism Act. The extradition proceedings have been suspended pending the outcome of the UK case.
111. Marrin, 'Britain's New Apartheid Makes Strangers of Us All', Sunday Times, 9 May 2004.
112. Goodhart, 'Too Diverse', Prospect Magazine, February 2004, reprinted in 'Discomfort of Strangers', Guardian, 24 February 2004. See also his reaction to the responses to his article, 'Diversity Divide', Prospect Magazine, April 2004.
113. See the series of replies from 17 specialists, which can be found online at http://www.prospect-magazine.co.uk/Start.asp, hereinafter referred to as Prospect Responses to Goodhart
114. Phillips, 'Genteel Xenophobia is as Bad as Any Other Kind: Some Liberals have Given Up on the Idea of a Multi-Ethnic Britain', Guardian, 16 February 2004
115. 'Celebrating Diversity', Guardian, 24 February 2004, which submits that Goodhart's arguments are flawed.
116. Banting and Kymlicka, 'The Worrying American Model', Prospect Responses to Goodhart, ibid.
117. Denham, '21st-Century Britishness', Prospect Responses to Goodhart ibid.
118. Similarly, see Parekh, 'What are Civilised Rules?', Prospect Responses to Goodhart, ibid.
119. Phillips, supra n. 83
120. Coyle, 'More Diversity of Economy', Prospect Responses to Goodhart supra n. 83. An obvious limitation on this economic argument is that those same immigrant workers inevitably also get older and need social support.
121. Shaseen, 'Diversity Consumers', Prospect Responses to Goodhart, ibid.
122. Spencer, '"In" Groups and "Out" Groups', Prospect Responses to Goodhart, ibid.
123. Ibid. On the proposed commission to which she refers see White Paper, Fairness For All: A New Commission for Equality and Human Rights, Cm 6185, May 2004, available at http://www.dti.gov.uk/consultations/ consultation-1192.html. On 18 November 2004 the Government published its formal response to the consultation, see http://www.womenandequalityunit.gov.uk/equality/project/ consultation_govtresponse_nov2004.doc
124. Rawthorn, 'The Impact of Immigration', Prospect Responses to Goodhart ibid.
125. Etzioni, 'Diversity within Unity', Prospect Responses to Goodhart, ibid.
126. Malik, 'Diversity of People or Values?', Prospect Responses to Goodhart, ibid.
127. Parekh, 'What are Civilised Rules?', Prospect Responses to Goodhart ibid.
128. Mondal, 'New National Myths', Prospect Responses to Goodhart, ibid.
129. See McGoldrick, 'Headscarves and Human Rights' (unpublished).
130. More generally, see Sunder, 'Piercing the Veil', (2003) 112 Yale Law Journal 1399.
131. Italy represents an interesting case study. See Grillo and Pratt (eds), The Politics of Recognizing Difference: Multiculturalism Italian Style (Aldershot: Ashgate, 2002) 1.
132. For a wider world perspective see Human Development Report 2004, supra n. 20 at Chapter 3 on 'Building Multicultural Democracies'.
133. Article 1 of the Law provides that: 'In State primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a religious affiliation is prohibited'. The school rules shall state that the institution of disciplinary proceedings shall be preceded by a dialogue with the pupil. The Official French text is as follows: ' Dans les écoles, les collèges et les lycées publics, le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse est interdit. Le règlement intérieur rappelle que la mise en oeuvre d'une procédure disciplinaire est précédée d'un dialogue avec l'élève, Loi no 2004-228 du 15 Mars 2004 parue au JO no 65 du 17 Mars 2004.
134. 'France Receives Threat from Islamists', Fox News Channel, 16 March 2004, available at http://www.foxnews.com/story/0,2933,114348,00.html.
135. 'France Responds to Hostage Crisis', BBC News, 30 August 2004, available at http://news.bbc.co.uk/1/hi/world/europe/3609412.stm
136. See 'Dutch are "Polarised" says Report', BBC News, 21 January 2004, available at http://news.bbc.co.uk/2/hi/europe/3417429.stm
137. See 'Film Maker is Murdered for his Art', The Times, 3 November 2004. The film can be viewed at http://www.ifilm.com.
138. See Halpin, 'Ban on Islamic Dress "Violated Pupil's Rights"', The Times, 28 May 2004; Debate in The Times, 1 and 5 June 2004.
139. R on the application of Shabina Begum (through her litigation friend Sherwas Rahman) v The Headteacher and Governors of Denbigh High School [2004] EWHC 1389 (Admin); [2004] ELR 374, in which the High Court upheld a school's uniform policy that did not allow for the wearing of the jilbab (long cloak). The Appeal Court allowed an appeal on the basis that the school approached the issues in the wrong way. It accepted that the school might still be able to justify its decision. See R on the application of Shabina Begum v The Headteacher and Governors of Denbigh High School [2005] EWCA Civ 199.
140. See Richardson (ed.), Islamophobia: Issues Challenges and Action (Stoke: Trentham Books, 2004);
141. and Marrin, 'Islamophobia: The Making of a Nasty British Myth', Sunday Times, 6 June 2004.
142. See Association of Muslim Social Scientists, Muslims on Education (2004) available at www.fairuk.org/Muslims_on_education_policy_paper.pdf
143. and Ward, 'State Schools "Must do Better" for Muslims', Guardian 8 June 2004. There are an estimated one and a half million Muslims in the UK.
144. For an important survey of the views of British Muslims see 'Young, Muslim and Black', Guardian, 30 November 2004.
145. On religious accommodation see also Cullen, 'R (Williamson) v Secretary of State for Education and Employment - Accommodation of Religion in Education', (2004) 16 Child and Family Law Quarterly 231.
146. See Scheinin, 'How to Resolve Conflicts between Collective and Individual Rights', in Scheinin and Toivanen (eds), supra n. 14, 219.
147. See the Canadian Multiculturalism Act 1988, which made multiculturalism the official policy of the Canadian government.
148. See Howard-Hassmann, 'Multiculturalism, Human Rights and Cultural Relativism: Canada's Civic Leaders Discuss Women's Rights and Gay and Lesbian Rights', (2000) 18 Netherlands Quarterly of Human Rights 493.
149. See Amiel, 'Soon We'll All Be in a Burqa', Sunday Times, News Review 22 August 2004, who commented that, 'Multiculturalism, feminism, Islamism and secularism were on a collision course'.
150. For the key statement of Government multicultural policy, see 'Multicultural Australia: United in Diversity', available at http://www.immi.gov.au/multicultural/australian. For a very valuable study see Multiculturalism and the Law, Australian Law Reform Commission, Number 57 (1992), available at http://www.austlii.edu.au/au/other/alrc/publications/reports/57.
151. This section of the article is developed from McGoldrick, From '9-11' to the 'Iraq War 2003' (Oxford: Hart, 2004) at 163-8.
152. The expression is that of Huntingdon, The Clash of Civilisations and the Remaking of World Order (New York: Simon and Schuster, 1996) at 109-20.
153. See also Berman, Terror and Liberalism (London: Norton, 2003) at 58-76, on the Islamic movement since the 1930 s.
154. See Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity (London: Verso, 2002).
155. The expression is that of Berman, supra n. 113 at 103-20.
156. See 'Tough on Terror: Muslim Leaders have a Duty to Condemn Extremism', The Times, 3 December 2003.
157. Comments of Woolsey, former CIA Director, in Michkowitch, 'America Rampant or a World Made Safe?', Prospect Magazine, September 2003.
158. Huntingdon, supra n. 113 at 117. Interestingly, in the US the number of converts to the Islamic faith has risen since the events of 11 September 2001.
159. See also Hobson, 'Europe both Fears and Envies the Certainties of Islam', The Times, 7 August 2004.
160. 'The emancipation of women, more than any other single issue, is the touchstone of the difference between modernisation and Westernization', Lewis, What Went Wrong? Western Impact and the Middle East Response (London: Weidenfeld and Nicolson, 2002) at 181. Kuwait was 'liberated' in 1991 but women still do not have the vote there. In 2001 the Kuwait government sought to change this situation but faced opposition from Islamic parliamentarians.
161. See 'Kuwait: Women Voting Issue Gains Supporters', Arabic News, 29 October 2004, available at http://www.arabicnews.com.
162. See Berman, supra n. 113 at 66, on the 'notion of Islam as totality'.
163. Ibid. at 90. As is well known, the church/state relationship in many Western states is often highly developed and can have a significant impact on state policy.
164. I use 'empire' in the limited sense of wide and disparate geographical location.
165. See Baderin, 'A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence', (2001) 1 Human Rights Law Review 265;
166. and Baderin, International Human Rights and Islamic Law (Oxford: Oxford University Press, 2003).
167. 2003-II 87; (2003) 37 EHRR 1.
168. Ibid. at paras 25 and 30.
169. 1998-I 1;(1998) 26 EHRR 121 at para. 45 [footnotes omitted].
170. Refah, supra n. 124 at para. 91
171. Ibid. at para. 119.
172. Ibid. at para. 123.
173. Ibid. at paras 132-3.
174. See the criticisms of Boyle, 'Human Rights, Religion and Democracy: The Refah Party Case', (2004) 1 Essex Human Rights Review, available at http://projects.essex.ac.uk/ehrr
175. The decision in Refah on the values of a secular state was heavily relied on by the ECtHR in its decision on Muslim headscarves in Leyla Sahin supra n. 13.
176. See generally Freeman, 'The Problem of Secularism in Human Rights Theory', (2004) Human Rights Quarterly 375;
177. Interestingly, in the US the number of converts to the Islamic faith has risen since the events of 11 September 2001.
178. See generally Mowbray, 'The Role of the European Court of Human Rights in the Promotion of Democracy', [1999] Public Law 703.
179. On reconciling universalism and cultural diversity, see Parekh, 'Non Ethnocentric Universalism', in Dunne and Wheeler (eds), Human Rights in Global Politics (Cambridge: Cambridge University Press, 1999) 128.
180. I leave aside the issue of customary international law obligations relating to human rights. See the interesting observations in the judgment of Lord Steyn in Re McKerr [2004] UKHL 12; [2004] UKHRR 385.
181. See Yrigoen Fajardo, 'Peru: Pluralist Constitution, Monist Judiciary - A Post-Reform Assessment', in Sieder (ed.), supra n. 51, 157.
182. See Article 5, CEDAW; also 'Article 18 (of the ICCPR) may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion', Human Rights Committee General Comment 28, Equality of Rights Between Men and Women (Article 3), 29 March 2000, CCPR/C/21/Rev.1/Add.10; 8 IHRR 303 (2001) at para. 21.
183. There are 170 states parties to the CEDAW, although a number have made extensive reservations.
184. See Human Rights Committee General Comment 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13; 11 IHRR 905 (2004) at para. 14. 11 IHRR 905 at para
185. See Joseph, Schultz and Castan, The ICCPR: Cases, Materials and Commentary, 2nd edn (Oxford: Oxford University Press, 2004) at 42-3.
186. Raday, supra n. 10 at 695. A classic example of this would be the decision of the Human Rights Committee in Lovelace v Canada (24/ 77), 30 July 1981, CCPR/C/13/D/24/1977, although the specific decision was based on minority rights rather than equality.
187. Raday, ibid. at 670.
188. Human Rights Committee General Comment 28, supra n. 137 at para. 5.
189. See Mullally, supra n. 8;
190. and Raday, supra n. 10.
191. This approach is strongly favoured by An-Naim, supra n. 41.
192. Of particular importance in this context is the work of the organisation Women Living under Muslim Law, http://www.luml.org, discussed by Sunder, supra n. 19 at Part III.
193. See supra n. 29. This approach would emphasis discourse ethics in which procedural arrangements arising from core moral principles are used to identify appropriate multicultural arrangements and set limits to the claims of collectivities.
194. On the legal problems concerning reservations to the ICCPR and particularly the competence to interpret them, see McGoldrick, 'Approaches to the Assertion of International Jurisdiction: The Human Rights Committee', in Capps, Evans and Konstantinides (eds), Asserting Jurisdiction (Oxford: Hart, 2002) 199. For the texts of states reservations to the ICCPR, see http://www.ohchr.org.
195. See Hastrup (ed.), Legal Cultures and Human Rights: The Challenge of Diversity (The Hague: Kluwer, 2001).
196. In a European context see Arai-Takahashi, The Margin of Appreciation and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002). The Human Rights Committee continues to maintain that it does not apply a margin of appreciation.
197. See, for example, Human Rights Committee General Comment 23, The Right of Minorities to Enjoy, Profess and Practise their Own Culture (Article 27), 8 April 1994, CCPR/C/21/Rev.1/Add.5; 1(3) IHRR 1 (1994).
198. For example, the specific Jewish and Muslim practices concerning the killing of animals for meat.
199. See Ingles, Multiculturalism: New Policy Response to Diversity (MOST Policy Papers, No. 4) (Paris: UNESCO, 1996), available at www.unesco.org/most/pp.4.htm.
200. See Spencer, supra n. 89;
201. and Jones, supra n. 50, on human rights as a secondary system of dispute resolution.
202. See Craig, 'Accommodation of Diversity in Education: A Human Rights Agenda?', (2003) 15 Child and Family Law Quarterly 279;
203. Al-Haj, 'Multiculturalism in Deeply Divided Societies: The Israeli Case', (2002) 26 Journal of Intercultural Relations 169;
204. and De Groof and Lauwers, 'Education Policy and Law: The Politics of Multiculturalism in Education', (2002) 14 Education and the Law 7. Part of the significance of education is its role as a 'transmitter' of culture.
205. On human rights as the basis of citizenship rights for minorities in Europe, see Sogal, The Limits of Citizenship (Chicago: Chicago University Press, 1994).
206. See also Kymlicka and Norman (eds), Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000). In the UK citizenship has been part of the national curriculum for secondary schoolchildren for 2 years. For a very positive report on its impact see Citizenship in the Curriculum: Two Years On (London: Community Service Volunteers, 2004) available at www.csv.org.uk.
207. For a different perspective on the issue, see de Sousa Santos, 'Towards a Multicultural Conception of Human Rights', in McCorquodale (ed.), Human Rights (Aldershot: Ashgate, 2003) 341.