The role of identity and belonging in human rights law

Yussef Al Tamimi
Doctoral Researcher, European University Institute, Florence

In my home country, the leader of the Dutch Christian Democrats Sybrand Buma recently held an important lecture in which he exclaimed that “ordinary Dutchmen have lost something on their way to the perfect Netherlands: their community, their identity, their sense of home and safety.” The fact that these types of statements are made by politicians of parties traditionally considered in the center of the political spectrum should come as no surprise. References to identity show up in political views across the spectrum, and are used to defend opposing opinions advocating more inclusion or exclusion.

In my research, I am interested in how the notion of identity is understood in human rights law. I believe that the way human rights deals with the notion of identity is important because it sets an authoritative standard through which to view identity-based arguments that are made in society. I am particularly interested in identity’s affective dimension, the sense of belonging, which Buma also alludes to when he speaks of a lost sense of home. What role do such affective claims play in human rights law? Should they be given any weight at all?

In the article ‘Human Rights and the Excess of Identity’ I analyzed the use of identity in the case law of the European Court of Human Rights, the most active human rights court in Europe and the world. The aim was to give a brief overview of the Court’s approach to identity and to reflect on this approach using theoretical sources. In terms of methodology, I employ a discursive approach by focusing on where the Court uses the term ‘identity’. The reason to choose this approach is to make the study more rigorous by making it replicable. This will come in useful for other researchers who might want to replicate or contest the presented interpretation, but also for personal research in order to be able to easily broaden the study toward a comprehensive examination of the use of identity in the Court’s entire case law – which will be the next step I will undertake.

The discursive approach showed that the term ‘identity’ is used by the Court broadly in three categories:

Private identity. In the majority of cases where identity is mentioned, the Court regards identity as part of an individual’s private life. As such, a right to identity has been developed under Article 8 ECHR, which guarantees the right to private life. The Court’s standard consideration on identity and the right to private life was first formulated in the case of Mikulić v. Croatia: “Private life, in the Court’s view, includes a person’s physical and psychological integrity and can sometimes embrace aspects of an individual’s physical and social identity.” (paragraph 53). The Court reiterated this consideration in several cases, ruling that private life also encompasses gender and ethnic identity. Therefore, violation of a person’s right to identity may constitute a reason for the Court to find a breach of Article 8 ECHR. In such cases, this can lead to a demand of increased efforts by the authorities (e.g. more effective procedural measures to establish a person’s paternity, Mikulić v. Croatia) or to a limited margin of appreciation for the State (e.g. X. and Others v. Austria).

Religious identity. Another Court consideration that invokes the notion of identity is related to the right to religious freedom under Article 9 ECHR. The Court holds that the religious dimension is one of the most vital elements of the identity of believers (Leyla Şahin v. Turkey: paragraph 104). The religious cases containing references to identity have very different conclusions and lines of argument. In the Turkish cases of Leyla Şahin and İzzettin Doğan and Others, besides the general consideration saying that religion is a vital element of the applicant’s identity, identity lacks an explicit impact on the Court’s reasoning. In contrast, in the Lautsi cases against Italy crucifixes were regarded as an ‘identity-linked symbol’ for the Italian people, and the Grand Chamber of the Court held that the crucifix is an ‘essentially passive symbol’ as opposed to the headscarf which is a ‘powerful external symbol’.

Collective identity. 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 of Article 11 ECHR. These cases seem to revolve around national minorities. In a case where the Court found that the freedom of association of a political party was violated (The United Communist Party of Turkey and Others v. Turkey), the Court referred to the party’s political programme which states that it advocates the participation of groups in politics with their own national identity. 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.

Subsequently, the article engages with theoretical views of the French philosopher Jacques Derrida and Indian cultural theorist Homi Bhabha. It is argued, drawing from Derrida’s figure of différance, that identities have no fixed essence and depend on excesses, ‘others’, to gain their meaning. Different power mechanisms facilitate the process through which identity is constructed, among which human rights law. Focusing on three cases selected from each of the aforementioned categories, the article suggests that these cases illustrate how the tension between the political and the apolitical inherent in identity is reflected in the Court’s approach to identity. In the important paternity case concerning Article 8 ECHR, Odièvre v. France, the Court speaks of the necessity to ‘discover the truth’ about one’s identity in relation to the right to obtain information about family history (paragraph 29). The seven dissenting judges adopted the same discourse in their opinion, referring to establishing fatherhood as the ‘essence of a person’s identity’. Here the Court appears to hold a specific view of what is presented as an unquestionable part of identity. That the Court depicts identity as pre-political is most evident in the Leyla Şahin v. Turkey case, where it contrasts the headscarf as either being an expression of identity or a political symbol. This ostensibly pre-political notion of identity becomes untenable in cases where the nature of an identity feature, such as the headscarf, is contended or a minority has adopted a national identity that conflicts with the majoritarian national identity (The United Communist Party of Turkey and Others v. Turkey). The Court’s approach to identity in such cases reflects a paradox that is inherent to identity; identity is personal while simultaneously constituted and shaped by overarching power mechanisms.

In subsequent research, I wish (i) to provide a comprehensive overview of the Court’s case law mentioning the term ‘identity’ in order to understand how the court construes the notion of identity and reveal themes and contradictions, and thus draw attention to these with a view to promoting a more informed way of thinking about the notion of identity in the human rights context. (ii) Secondly, to focus on the affective aspect of identity, the sense of belonging, and consider how it relates to the Court’s case law. This includes both a descriptive question, how the case law deals with affective claims at the moment, and a normative question on how human rights law should involve belonging in its considerations, which would involve more theoretical and social-scientific insights and discussions on belonging. In a time when the lack of a sense of belonging of different groups in society is under pressure, it is crucial that the Court has a thorough understanding of this notion and considers its legal significance. Being an essential component of a meaningful, fulfilling life, human rights law would leave part of its promise unfulfilled without fostering the sense of belonging.

Yussef’s paper is free-to-access for a limited time (correct at 25.10.2017) at the link below.

Yussef Al Tamimi is a Doctoral Researcher at the European University Institute in Florence, Italy. He currently works on the role of identity and belonging in human rights law, combining legal and theoretical methodology. He authored ‘Human Rights and the Excess of Identity: A Legal and Theoretical Inquiry into the Notion of Identity in Strasbourg Case Law’ in Social & Legal Studies (Online First) while he was a junior lecturer at Vrije Universiteit Amsterdam.

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