'The government did not refer to it': 'Sas v France' and 'ordre public' at the European court of human rights

TLDR: SAS v France as mentioned in this paper was the first case in which the European Court of Human Rights (ECtHR) accepted vivre ensemble as a limitation on the protection of the rights and freedoms of others.

Abstract: Contents I Introduction II SAS v France: Facts and Proceedings A Facts B Proceedings III The Unconsidered Limitation Ground: Ordre Public A The 'Absence' of Ordre Public Arguments in SAS v France B From Ordre Public to the Rights and Freedoms of Others in 'Headscarf Cases' C Ordre Public Arguments under the Rights and Freedoms of Others in Other Cases IV Implications for the Future V Conclusion This case note comprises a review of the European Court of Human Rights' ('ECtHR ') judgment in SAS v France which upheld the French 'burqa ban'. I focus on the ECtHR's acceptance of a French societal principle, vivre ensemble, as a limitation on the rights to privacy and freedom of religion covered by the limitation ground of 'the protection of the rights and freedoms of others 1 argue that, contrary to what a number of authors have proposed, the ECtHR did not take a new approach to 'the rights and freedoms of others' in SAS v France. Rather, as I demonstrate with the help of the 'headscarf cases' leading up to the judgment and other cases in which the ECtHR sanctioned reliance on fundamental societal principles, SAS v France further establishes an emerging trend at the ECtHR to bring in what are essentially ordre public (public order) arguments under human rights provisions which do not contain an ordre public limitation ground via their inclusion under 'the rights and freedoms of others'. I INTRODUCTION Voted worst judgment of 2014 by Strasbourg Observers, (1) the European Court of Human Rights' ('ECtHR' or 'the Court') judgment in SAS v France, which upheld what is commonly known as the French 'burqa ban', (2) stirred up quite some controversy among critics. (3) Not many commentators had expected the ECtHR to uphold the French ban on full-face coverings in public, (4) much less that the Court would do so on the basis of the notion of vivre ensemble ('living together') accepted by the Court to form part of the limitation ground of 'the rights and freedoms of others' under arts 8 (privacy) and 9 (freedom of religion) of the European Convention on Human Rights ('ECHR' or 'Convention'). (5) Some have argued that the Court took an entirely novel approach to 'the rights and freedoms of others', being for the first time confronted with the concept of vivre ensemble. (6) This case note reviews the judgment in SAS v France and subsequently argues that the Court was neither first confronted with vivre ensemble, nor did it take a novel approach to 'the rights and freedoms of others'. Rather, SAS v France forms part of a trend at the ECtHR to include what are essentially public order (ordre public) considerations (eg vivre ensemble) in 'the rights and freedoms of others' limitation under human rights, which do not contain a public order (ordre public) limitation ground. Placing the judgment of SAS v France in context, I will demonstrate that it forms part of a development under the ECtHR's case law instead of offering a 'novel approach'. Following this introduction, I first introduce the case of SAS v France (Part II). Thereafter, I explain how the Court in SAS v France attempted to 'remedy' the lack of a public order (ordre public) limitation under ECHR art 8 through an acceptance of ordre public considerations under 'the rights and freedoms of others', and that doing so is not a new practice but part of an emerging trend developed within the context of religious manifestation and beyond (Part III). Subsequently, I indicate future implications of broadening the limitation ground of 'the rights and freedoms of others' to encompass public order (ordre public) and the ruling in SAS v France (Part IV) and end with a short conclusion (Part V). II SAS V FRANCE: FACTS AND PROCEEDINGS A Facts On 11 April 2011, Law No 2010-1192 prohibiting all (7) persons present on French territory to conceal their faces in public, including through full-face veils, (8) entered into force. …