The Diaspora Paradox: Integrating International Legal Norms into Domestic Law to Protect the Rights of Middle Eastern Diasporas
Christopher Scott Maravilla
affiliation not provided to SSRN
August 2, 2008
Islamic Law and Law of the Muslim World Paper No. 08-46
A dichotomy exists in the laws addressing diasporas. International covenants, generally influenced by the postcolonial sympathies of many UN-member states, tend toward protecting human rights. In contrast, domestic laws tend to reflect a country's xenophobia. With regard to diasporas of Middle Eastern origins, those laws are often influenced by Islamophobia and the global War on Terror. This is well illustrated by the ban on wearing the Islamic burqa and niqab spreading through Europe. While the policies are aimed at protecting religious freedom in pluralist societies, in practice it amounts to a form of State imposed covering to suppress the religious identity of Muslims.
This paper will use the European headscarf bans as a case study for comparing the application of domestic and international law by reviewing international covenants, domestic laws, and the decisions of European courts and international tribunals. Relevant political theories on political identity will also be incorporated particularly Kenji Yoshino's work on covering and Anne Norton's writings on political identity as they relate to domestic laws. The Islamophobic-centric writings of Oriana Fallaci will be used as a basis for the more extreme views of Muslim immigrants in European society. Finally, this paper concludes that domestic fears of Muslims have influenced the various bans on the burqa in contrast to international obligations to protect religious freedom.
Date posted: August 5, 2008