Fundamentos antropológicos del matrimonio

Substantive equality obligates States Parties not only to adopt laws and policies to eliminate discrimination (formal equality), but requires the achievement of factual equality through elimination of discriminatory outcomes.748 The idea of substantive equality becomes problematic in practice, particularly, when the term itself is yet unclear for those involved in its implementation. Equality itself has multiple meanings depending on context,749 which causes confusion750 on the state obligations under international human rights instruments. Leyla Şahın’s European Court of Human Rights Case751 discussed the right to substantive equality of wearing a headscarf in Turkey. The reasoning used by the Court called into question the usefulness of the concept of substantive equality to understand the obligations of Turkey.752

Leyla Şahın was an enrolled student at the Istanbul University in 1998. Later that year, the University issued a circular notifying students with headscarves that they would not be added to the list of registered students and could not attend lectures or tutorials with the headscarf. Şahın challenged the circular before the Istanbul

747 _{CEDAW 1979, art 2(f).} 748 _{Freeman, above n 499, at 235.}

749 _{Matthew CR Craven The International Covenant on Economic, Social, and Cultural Rights} (Clarendon Press, 1998) at 154.

750 _{Smith, above n 486, at 14. See argument on abandoning ‘equality’ due to its superfluous nature} in Peter Westen The Empty Idea of Equality (Harvard Law Review Association, 1982).

751 _{Leyla Şahın v Turkey, App. No. 44774/98, 2005-XI Eur. Ct. H.R. 39. Available at} www.echr.coe.int, accessed at 7.45 am, 27.08.2015.

752 _{Rachel Rebouché “The Substance of Substantive Equality: Gender Equality and Turkey’s} Headscarf Debate” (2008) 24 Am U Int’l L Rev 711 at 713.

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Administrative Court, arguing that the ban infringed her right to respect for private and family life, right to freedom of thought, conscience, and religion, and right to non-discrimination under the ECHR as well as her right to education under the First Protocol to the ECHR. The Istanbul Administrative Court dismissed her application, and the Supreme Administrative Court rejected her appeal. Şahın continued to wear a headscarf and was ultimately suspended from the university for a semester. She returned to the Istanbul Administrative Court and petitioned for her suspension to be set aside, but her application was dismissed again. In 1999, Şahın left Turkey and enrolled at Vienna University and pursued her case before the European Court of Human Rights. In 2004, the Court upheld the ban stating that there was no violation of a right to religious expression. The other claims were again, dismissed. On appeal to the Grand Chamber of the same Court, the Court upheld the headscarf ban and stated that Şahın’s right to religious expression has been violated under Article 9 (1) of ECHR, but justified under Article 9 (2) of the same Convention, which states that such expression “shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society, health or morals, or for the protection of the rights and freedoms of others”.753 The Court further stated that the ban was prescribed by law and legitimate because the law furthers secular interests of the State by protecting the rights and freedoms of others and maintaining public order. According to the Court, the ban embodied pluralism, secularism and gender equality.754

The majority decision ruled that the headscarf symbolised restriction, imposition and mandatory duties which were contrary to secularism.755 _{According to the Court,}

the official endorsement of a headscarf would be discriminatory towards secular Muslims and non-Muslims who did not wear headscarves. The Court also declared

753 _{ECHR, Art. 9 (2).}

754 _{Rebouché, above n 752, at 719.}

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that the values associated with the wearing of a headscarf were incompatible with those of contemporary society.756

In deep contrast, in 2005, the CEDAW Committee expressed its concern over the Turkish headscarf ban.757 Amongst other questions, the CEDAW Committee asked why headscarves were singled out as contraband religious symbols and as the only one that potentially offended a woman’s freedom of religious expression; and if the ban itself was a form of oppression, mostly singling out women from rural areas.758

Turkey’s answer to the questions raised by the CEDAW Committee were explained by using regulations on dress, i.e. formal equality.759 Whilst the case demonstrates some of the issues associated with how substantive equality can be viewed from different perspectives,760 the main problem here is that it is unclear if the ban would promote exclusion of more women from education in Turkey, or whether it would promote inclusion of more women from diverse backgrounds in education. This case shows that the final decision as to what will be deemed as substantive equality, will be decided by the individual States Party.761

International human rights are enforced through transnational legal processes,762 and are based on the interactions between institutions, interpretations and internalisation of universal norms. In order to have local effect, these norms need to permeate the “consciousness of the ordinary people around the world.”763 The success of the international human rights regime therefore, depends on its

756 _{Leyla Şahin v Turkey [Grand Chamber Judgment], 2005 - XI, above n 751.} 757 _{Rebouché, above n 752, at 730.}

758 _{At 730–731.}

759 _{At 731; also see CEDAW/C/SR678, at 26.}

760 _{See the views expressed in the majority judgment, the dissent and opinions of the CEDAW} Committee.

761 _{Rebouché, above n 752, at 734.} 762 _{Koh, above n 641.}

763 _{Sally Engle Merry Human rights and gender violence (University of Chicago Press, Chicago,} 2006) at 2; Reproduced in, Philip Alston and Ryan Goodman International Human Rights in Context, Henry J Steiner (ed) (3rd _{ed, Oxford University Press, Oxford UK ; New York, 2007) at} 524.

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acceptance at the local level,764 and the transition may not be free of challenges.765 For instance, although substantive equality is a valuable tool for the achievement of women’s equality in both the private and public spheres, cases such as Şahın reveal deeper problems, associated with the application of substantive equality as a principle, because of underlying tensions between the idealised principles in international human rights regimes and individual rights, practiced at the domestic level, which are often based on cultural and traditional values of the individual States Party. Thus, the international human rights framework needs more support and acceptance from culturally diverse systems.766

3.2 Understanding Norm Clashes: Culture, Religion and a CEDAW Right