RIGALIA’S BAN OF THE MAVAZI FOR ZETIAN WOMEN AND GIRLS VIOLATES THEIR RIGHTS UNDER

INTERNATIONAL LAW.

There is an internationally recognized protection against non-discrimination

The UN Charter proclaims that one of the purposes of the UN is to achieve international
cooperation in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion.1

Further, The Convention on the Elimination of All Forms of Discrimination against

Women (CEDAW)2 is a comprehensive document designed to advance and empower women
and protect their civil, political, economic, social, and cultural human rights.3

The prohibition of religious discrimination is reflected in the UDHR.4 It states that “everyone is
entitled to all the rights and freedoms set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status”.5 The Declaration states that" everyone has the right to
freedom of thought, conscience and religion... "6

ICCPR enunciates the principles of non-discrimination against minorities

International Covenant on Civil and Political7 Rights is now considered as the most important
binding international instrument which supports minorities. Article 18 of the Covenant states:

1
U.N. Charter paragraph 3 of article 1 and paragraph 3 of article 55.
2
----------------
3
See Progress Achieved in the Implementation of the Convention on
the Elimination of All Forms of Discrimination against Women:
Report by the Committee on the Elimination of Discrimination
Against Women, U.N. Doc. A/CONF.177/7 (1995).

4
---------------
5
article 2 of UDHR
6
Article 18 of the UDHR
7
International Covenant on Civil and Political Rights. (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS 171 (ICCPR).
"1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of parents
and, when applicable, legal guardians to ensure the religious and moral education of their
children in conformity with their own convictions".

Human Rights Committee (the monitoring body of the ICCPR) in its General Comment 228 has
interpreted Article 18 in the following terms:"the freedom to manifest religion or belief in
worship, observance, practice and teaching encompasses a broad range of acts. The concept of
worship extends to ritual and ceremonial acts giving direct expression to belief, as well as
various practices integral to such acts, including the building of places of worship, the use of
ritual formulae, and objects, the display of symbols, and the observance of holidays and days of
rest. The observance and practice of religion or belief may include not only ceremonial acts but
also such customs as the observance of dietary regulations, the wearing of distinctive clothing
or head coverings, participation in rituals associated with certain stages of life, and the use of a
particular language, customarily spoken by a group. In addition, the practice and teaching of
religion or belief includes acts integral to the conduct by religious groups of their basic affairs,
such as freedom to choose their religious leaders, priests and teachers, the freedom to establish
seminaries or religious schools and the freedom to prepare and distribute religious texts or
publications."

Article 27 of the Covenant stipulates that "in those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall not be denied the right, in community
8
---------------------------------
with other members of their group, to enjoy their own culture, to profess and practice their own
religion, or to use their own language".

According to Article 5 (1) of the ICCPR "nothing in the present Covenant may be interpreted as
implying for any State, group or person any right to engage in any activity or perform any act
aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation
to a greater extent than is provided for in the present Covenant."

Protection is provided through Declaration on the Rights of Persons Belonging to National or

Ethnic, Religious and Linguistic Minorities

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities (adopted on December 18 in 1992)9 develops a system of supporting minority rights.
Paragraph 1, Article 2 of the declaration states that "persons belonging to national or ethnic,
religious and linguistic minorities have the right to enjoy their own culture, to profess and
practice their own religion, and to use their own language, in private and in public, freely and
without interference or any form of discrimination".

Paragraph 1, Article 1 of the same Declaration maintains that "States shall protect the existence
and the national or ethnic, cultural, religious and linguistic identity of minorities within their
respective territories and shall encourage conditions for the promotion of that identity".

Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on

Religion or Belief
Declaration on the Elimination of All Forms of Intolerance and of Discrimination10 Based on
Religion or Belief was adopted by the United Nations General Assembly on 25 November 1981.
According to the Declaration "Everyone shall have the right to freedom of thought, conscience
and religion. This right shall include freedom to have a religion or whatever belief of his choice,
and freedom, either individually or in community with others and in public or private, to

9
-----------------
10
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief 1981. G.A. res. 36/55, 36 U.N. GAOR Supp. (No. 51) at 171, U.N. Doc. A/36/684 (1981).
manifest his religion or belief in worship, observance, practice and teaching."11 The declaration
further states that “the right to freedom of thought, conscience, religion or belief includes the
freedom, to worship or assemble in connection with a religion or belief".12 Moreover, the right to
freedom of thought, conscience, religion or belief includes the freedom, to make, acquire and use
the necessary articles and materials related to the rites or customs of a religion or belief.13

Article 5(3) of the same Declaration stipulates that “the child shall be protected from any form of
discrimination on the ground of religion or belief. He shall be brought up in a spirit of
understanding, tolerance, friendship among peoples, peace and universal brotherhood, respect for
freedom of religion or belief of others, and in full consciousness that his energy and talents
should be devoted to the service of his fellow men."

Convention on the Rights of the Child

Articles 14 and 30 of the Convention on the Rights of The Child14 deal with children belonging
to minorities. According to Article 14 “States Parties shall respect the right of the child to
freedom of thought, conscience and religion and shall also respect the rights and duties of the
parents and, when applicable, legal guardians, to provide direction to the child in the exercise of
his or her right in a manner consistent with the evolving capacities of the child”.

Article 30 stipulates that "in those States in which ethnic, religious or linguistic minorities or
persons of indigenous origin exist, a child belonging to such a minority or who is indigenous
shall not be denied the right, in community with other members of his or her group, to enjoy his
or her own culture, to profess and practice his or her own religion, or to use his or her own
language."

11
Ibid at Article 1(1) .
12
Ibid at Article 6(a) .
13
Ibid at Article 6(c).
14
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Guarantees of non-discrimination and equality in International Human Rights treaties
mandate both de facto and de jure equality

Religion, spirituality and belief play a central role in the lives of millions of women and men, in
the way they live and in the aspirations they have for the future. The right to freedom of thought,
conscience and religion is inalienable and must be universally enjoyed.15

It is submitted that the enjoyment of the human rights on the basis of equality between men and
women must be understood comprehensively. Guarantees of non-discrimination and equality in
International Human Rights treaties mandate both de facto and de jure equality. De Jure equality
assumes that equality is achieved if a law or policy treats men and women in neutral manner. De
facto equality is concerned, in addition, with the effects of law, policies and practices and with
ensuring that they do not maintain, but rather alleviate, the inherent disadvantages that particular
groups experience.16 In particular, measures and programmes should be adopted towards a real
transformation of opportunities.17 Banning of “Marvazi” in the present case may further lead
to discrimination in education, employment, and housing.18
15
Fourth World Conference on Women, Beijing Platform for Action, U.N. GAOR, 52d Sess., Annex II , ¶ 24, U.N. Doc.
A/C.177/20/Rev.1 (1996) [hereinafter Beijing Platform].

16
CESCR, General Comment 16, UN Doc E/C. 12/205/4 (11 August 2005).
17
CEDAW, General Recommendation 25 of Article 4, paragraph 10, of the Convention on the
Elimination of All Forms of Discrimination against Women, on Temporary Special Measures
(2004), para 10. Available at http://www2.ohchr.org/english/bodies/cedaw/comments.htm.
18
See Council of Europe, European Commission against Racism and
Intolerance (ECRI), Third Report on France, CRI (2005) 3 (June 25,
2004), available at
http://hudoc.ecri.coe.int/XMLEcri/ENGLISH/Cycle_03/03_CbC_eng/
“Mavazi marks as "an attachment to a group, common to both sexes: community, ethnic group,
nation, religion, locality, [and] social class."19

The new law banning ‘Mavazi’is likely to have negative consequences for Zetian women and
girls who used to wear the ‘mavazi’, regardless of the reasons why they wore it. Zetian women
and girls who freely chose to wear the hijab are now forced to choose between strictly following
their religious beliefs and following the law enacted.20

The ban will only lead to increased feelings of alienation among Zetian youth and increased
segregation between Zetians and the mainstream population: the opposite of what the RIgalian
government hoped to achieve.21
If young Zetian feel increasingly rejected by and alienated from Rigalian government and
society, they will be more likely to join fundamentalist, extremist, or militant groups.22

‘Mavazi’ is not a cause of subjugation of Zetian women and girls and a direct cause of
poverty in the Northern

FRA-CbC-III-2005-3-ENG.pdf. See also Kate Connolly, Teaching

Nuns Hit by Muslim Headscarf Ban, Daily Telegraph (U.K.), Oct. 11,
2004, at 12, available at http://
www.opinion.telegraph.co.uk/news/main.jhtml?
xml=/news/2004/10/11/wger11.xml.

19
Adrien Katherine Wing & Monica Nigh Smith, Critical Race Feminism Lifts the Veil? Muslim
Women, France, and the Headscarf Ban, 39 U.C. DAVIS L. REV. 743, 756 (March 2006) at
773.
20
See, 'Teacher Headscarf' Case, 100 Am. J. Int'l Law 186, 186-196
(2006). See also e.g., Wikipedia: The Free Encyclopedia, French Law on Secularity and
Conspicuous Religious Symbols in Schools, http://
en.wikipedia.org/wiki/French_law_on_secularity_and_conspicuous_religious_
symbols_in_schools (last visited October 8, 2010).
21
[FN7]. See, e.g., Caroline Wyatt, French Headscarf Ban Opens Rifts, BBC News, Feb. 11,
2004, http://news.bbc.co.uk/1/hi/world/europe/3478895.stm; Caroline Wyatt, Headscarf Row
Hides Deeper Issues, BBC News, Dec. 11, 2003,
http://news.bbc.co.uk/1/hi/world/europe/3311485.stm.
22
Ibid.
It is submitted that, it is important to note that, in keeping with freedom of religion, groups have
the right to interpret their own religious texts and consequently, there is an unwillingness to
engage in debates on the religious texts of ‘others’ whatever their religion.23

There are various reasons why a Zetian women wears ‘Mavazi’. For some women, the
Mavazi is empowering – it enables them to take control of their bodies, it makes their identities
distinct and it gives them a sense of belonging to a wider Zetaian ethinicity.24 The
Mavazi as a mark of identity (as Each Mavazi is exceptionally intricate, with ornate colors and
designs unique to each tribe, and is usually, although not always, accompanied by a set of loose
robes with matching designs25) is a consistent theme which confers status and dignity on its
wearers.26 Importantly, it is considered as ‘a device to negotiate spaces within the Zetian
community, as well as in the dominant western culture.27 However, these multiple identities are
often ignored in debates.28
The Zetian Mavazi is not only a piece of cloth but is used as a signifier for cultural, religious and
ethnic differences.29

The question that arises is that- what is the signification of wearing the ‘Mavazi’? … It is a
practise that is engaged in for a variety of reasons. It does not necessarily symbolise the
submission of women to men and there are those who maintain that, in certain cases, it can be a
means of emancipating women. What is lacking in the step taken by the Respondent state is the
opinion of women, both those who wear the Mavazi and those who choose not to.30

Moreover the Human Rights Committee has also confirmed that: the freedom to manifest one’s
religion encompasses the right to wear clothes or attire in public which is in conformity with the
individual’s faith or religion … that to prevent a person from wearing religious clothing in public
or private may constitute a violation of article 18, paragraph 2, which prohibits any coercion that
would impair the individual’s freedom to have or adopt a religion.31
23
McGoldrick, Dominic. 2006. Human Rights and Religion - The Islamic Headscarf Debate in Europe:
Hart Publishing. P. 9
24
Ruby, Tabassum F. 2006. Listening to the vocies of hijab. Women's Studies International Forum 29.
p.54
25
Para 3 line 9 of the facts on record
26
See Ruby, Tabassum F. 2006. Listening to the vocies of hijab. Women's Studies International Forum 29.
p.64
27
Ibid.
28
See Freedman, Jane. 2007. Women, Islam and rights in Europe: beyond a universalist/culturalist dichotomy.
Review of International Studies 33. P.41
29
See Kilic, Sevgi, Saharso, Sawitri, and Sauer, Birgit. 2008. Introduction: The Veil: Debating Citizenship,
Gender and Religious Diversity. Social Politics: International Studies in Gender, State and Society 15 (4).
p.404
30
see Sahin v Turkey 2005. In (App no 44774/98 (Unreported, ECHR, Grand Chamber, 10 November 2005)
[12] (Dissenting Opinion of Judge Tulkens): ECtHR
31
Raihon Hudoyberganova v Uzbekistan 2004. In Human Rights Committee.: Communication No.
Moreover the Committee has also observed that, ‘the observance and practice of religion or
belief may include not only ceremonial acts but also such customs as … the wearing of
distinctive clothing.’32

Use of ‘Mavazi’ is not against Public Safety

It is submitted that the exception clause of various internatonal conventions 33‘imposes certain
restriction on freedom to manifest one’s religion or beliefs. One of such ground is “public
safety”. The onus of proving such restriction against wearing of ‘Mavazi’ is heavily on the
respondent state.34
In Mannousakis v Greece35, the Court held that the right of manifestation of belief excludes the
discretion of states to determine ‘whether religious beliefs or the means used to express them are
legitimate’.

In United Communist Party of Turkey v Turkey36 it was held that ‘under Art. 9(2) ECHR,
freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are
prescribed by law and are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals or for the protection of rights and freedoms of
others’. Indeed, the right enshrined in Art. 9 is so fundamental that the limitations in Art. 9(2) are
even narrower than those relating to the freedom of expression, association and assembly
contained in the ECHR. The European Court has consistently stated that there must be a narrow
construction of these limitations together with a broad interpretation of the freedoms guaranteed.
Any restrictions on freedoms must be ‘construed strictly’ and can be justified only by
‘convincing and compelling reasons’37

Further, under international law, states can only limit religious practices when there is a
compelling public safety reason, when the manifestation of religious beliefs would impinge on
the rights of others. However, it has not been shown that ‘the right to be free from religious
pressure’ has indeed been infringed. ‘Mavazi’ do not pose a threat to public health, order or
morals; they have no effect on the fundamental rights and freedoms of other people.38 In other
931/2000. Hudoyberganova v. Uzebekistan (931/2000), ICCPR, A/60/40 vol. II (5 November 2004).
See also Joseph, Sarah. 2006. United Nations Human Rights Committee: Recent Cases. Human Rights Law Review
6 (2). p.369.
32
Human Rights Committee. 2004. 'General Comment No 22' in Compilation of General Comments and
General Recommendations adopted by Human Rights Treaty Bodies. Note by the Secretariat. UN Doc
HRI/GEN/1/Rev.7. para 4
33
See ECHR art 9 (2) and ICCPR art18 (3)
34
2006. Human Rights and Religion - The Islamic Headscarf Debate in Europe: Hart Publishing. p.29
35
23 EHRR 387 (1996)
36
United Communist Party of Turkey v Turkey, 30 January 1998
37
See Ibid.
38
See Human Rights Watch, (2004) France: Headscarf Ban Violates Religious Freedom Human
rights Watch, http://www.hrw.org/english/docs/2004/02/26/france7666.htm [Accessed 7 October
words, it has not been shown in what way the ‘mavazi’ would have such influence on people of
other ethnicity in Regalia. International human rights law obliges state authorities to avoid
coercion in matters of religious freedom, and this obligation must be taken into account in the
case of banning a symbol of religious identity39 [here ‘mavazi’].
Mavazi do not pose a threat to public safety, health, order, or morals, and they do not impinge on
the rights of others. They are not inherently dangerous or disruptive of order.40

Religious liberty does not connote the privilege to exhort others to physical attack upon those
belonging to another section. When clear and present danger of riot, disorder, or other immediate
threat to public safety, peace or order, appears, the power of the State to prevent or punish is
obvious. Equally obvious is it that a State may not unduly suppress free communication of
views, religious or other, under the guise of conserving desirable conditions.41

The main argument used to justify the bans on ‘mavazi’ is that public safety is undermined if
some people (especially the suicide bombers) are allowed to hide their identity.
In the public sphere, where people go about their daily lives, there is no apparent or urgent need
to ban the ‘mavazi’. Also as Zetain women generally live in the Northern Province and they are
not permitted to have paid employment42, hence there is less chance of them going in public
spaces and so other steps should had been taken instead of banning ‘mavazi’ to protect public
safety.

2010]
39
See Ibid.
40
See Human Rights Watch, Memorandum from Human Rights Watch to the Turkish
Government on Human Rights Watch's Concerns withRegard to Academic Freedom in Higher
Education, and Access to Higher Education for Women who Wear the Headscarf 27 (June 29,
2004), http:// wwwhrw.org/legacy/backgrounder/eca/turkey/2004/headscarf_memo.pdf
[hereinafterMemorandum].
41
[FN142]. Cantwell, 310 U.S. at 308 (emphasis added).

42
Para 4 line 2 of the facts on record.