Far from developing a standard formula, the Court has occasionally referred to collective identities as providing a basis for protection under the right to freedom of association Article 11 ECHR. In a case where Polish authorities refused to register an association formed by people from Silesia, a minority in Poland, the court found a breach of Article 11 Gorzelik and others v. The Court, referring to the Framework Convention for the Protection of National Minorities, considered that the freedom of association is crucial for minorities to enable them to express and promote their identity:.
Indeed, forming an association in order to express and promote its identity may be instrumental in helping a minority to preserve and uphold its rights. The Framework Convention for the Protection of National Minorities, to which the Court refers, mentions the requirement to respect the ethnic, cultural, linguistic and religious identity of national minorities. However, the Court found that the Silesian people are a national minority in Poland and their freedom of association should be guaranteed in order to express and promote their identity.
In another case concerning the Kurdish minority in Turkey, the Court was more cautious to mention the right to identity of the minority. Thus, without explicitly stating the right to a separate national identity, the Court does find a breach of Article 11 ECHR for not providing the minority with an adequate safeguard to their freedom of association. Therefore, collective identity plays a role in case law on the right to freedom of association.
sociologyofrights [licensed for non-commercial use only] / Members' Research and Publications
These cases seem to revolve around national minorities. Such cases are not common. Accordingly, the section is built up in three steps. France is used to show that the Court constructs its own, at times biologistic, notion of identity. Out of these assumptions arises a perceived natural form of identity to which alien features are a surplus. The question arises why lineage, and in particular fatherhood, is deemed so important for identity.
This is not explained nor justified by the Court. The Court uses the term identity in a fully biologistic way. Jill Marshall argues that the Court stays remarkably ambiguous on what identity means in this situation. She notes that while the Court speaks of the truth and essence of identity, only four per cent of children born anonymously ask for access to origins information that is legally available under the French law, 96 per cent do not Marshall, : If the Court does not justify what constitutes the essence of identity and what belongs to its peripheries, the right to identity remains undetermined with a potentially over-inclusive or exclusive scope.
With its focus on biological parenthood, the Court sketches a picture of identity that is not as natural as the Court makes it out to be. Objectors to the notion of fixed parenthood oppose a status of father based on whether one has a blood connection, preferring a status based on whether one exercises the rights and fulfils the obligations of parenthood Baker, France becomes visibly untenable in cases where the nature of an identity feature is contended. The contrast in itself is questionable: Why can an object that is part of our identity not be a political symbol at the same time?
Or rather, when does any part of identity stop being political? The Court chooses to evade these questions and avoids using the notion of identity in the rest of the judgment. This pre-political approach to identity is visible throughout the mentioned case law. Critics argue that rights, in fact, constitute us as persons, rather than simply recognize a pre-existing personhood.
Members' Research and Publications
Evidently, the Court does not go into this much depth about the politicality of the headscarf. In this way, the Court appears to ascribe an identity to the nation-state of Turkey: a secular state following secularist principles in the public sphere. Christian tradition is acknowledged as the national Italian religious identity. Lautsi and Others v.
What is Kobo Super Points?
In the former, the Court found that the neutrality of the Turkish state is a justified motive for prohibiting women with headscarves into universities. In some instances, the identity of a claimant might pose an explicit questioning of, or threat to, the identity of the state against which the claim is directed. The claim to identity no longer concerns a slight feature. The national identity endorsed by the applicant forms an excess that expressly challenges the Turkish national identity. The political party proposes that both groups participate in the political process with their own national identity, but the state strikes down the proposal.
It seems that the more explicit challenging of national identity, particularly when proceeding through political channels, can count on protection by the Court. This case shows that, similar to the cases concerning religious freedom, distinguishing between what is inside and outside of the subjectivity of identity is not only conceptually paradoxical, as was argued in the first section, but within a pluralistic nation-state also practically challenging.
In the long fight against racial segregation in the United States, the pioneering sociologist W. Different power mechanisms facilitate the process through which identity is constructed, among which human rights law.
- Knowledge, ideology and power. Deconstructing Kurdish Studies?
- Dom Nada de Coisa Alguma (Portuguese Edition).
- Lectures and seminars;
- Human rights in Israel.
- Citation Tools.
- Bibliographic Information.
In a time when identity dominates in public debates, the way the Court approaches identity is of utmost importance. Human rights act as central moral and political reference points in these public debates. Indeed, human rights are often used by opposing political camps and social groups to justify and enhance their assertions. Under such conditions, it is imperative that the Court is especially well aware of how it uses the notion of identity in its case law.
I am grateful to two anonymous reviewers for their comments. See Ricoeur, : and further. The dialectic between sameness and selfhood is equally discernible at the national level. Michael Rosenfeld suggests that while the text of a constitution often remains the same, interpretations of the text vary and diverge over time. See Rosenfeld, : 27; see also Corrias, : Skip to main content.
Article Menu. Download PDF. Open EPUB. Cite Citation Tools. How to cite this article If you have the appropriate software installed, you can download article citation data to the citation manager of your choice. Download Citation If you have the appropriate software installed, you can download article citation data to the citation manager of your choice.
Share Share. Recommend to a friend. Sharing links are not available for this article. I have read and accept the terms and conditions.
Copy to clipboard. Request Permissions View permissions information for this article. Article information. Article Information Volume: 27 issue: 3, page s : Article first published online: July 31, ; Issue published: June 1, Email: y. Keywords Bhabha , Derrida , European court of human rights , fatherhood , headscarf , identity.
Homi Bhabha, On minorities. Law and Identity. The Legal Prioritization of National Identity. Analyzing the Excess of Identity. Fatherhood and the Essence of Identity. National Identity contra National Identity. Notes 1. View Abstract.
Related Human Rights Violation in Turkey: Rethinking Sociological Perspectives
Copyright 2019 - All Right Reserved