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Journal of European Integration

ISSN: 0703-6337 (Print) 1477-2280 (Online) Journal homepage: https://www.tandfonline.com/loi/geui20

Culture and identity

Sergiu Constantin & Günther Rautz

To cite this article: Sergiu Constantin & Günther Rautz (2003) Culture and identity, Journal of
European Integration, 25:3, 189-205, DOI: 10.1080/0703633032000133556

To link to this article: https://doi.org/10.1080/0703633032000133556

Published online: 24 Sep 2010.

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European Integration, 2003, Vol. 25(3), September, pp. 189–205

CULTURE AND IDENTITY


SERGIU CONSTANTIN and GÜNTHER RAUTZ*
European Academy, Bolzano, Italy

Culture and identity are not just some abstract notions, but ‘living’ concepts which are closely connected to people’s
lives, and the decision of the domestic courts reflect, in fact, how different societies respond to the issue of protecting
the culture and identity of minorities. The national courts’ decisions presented in this article are related to the
following groups: linguistic minorities, national minorities, ‘new’ minorities, religious minorities and indigenous
people. The selection of the case laws was made with a double aim: first to provide relevant jurisprudence covering
different topics of interest for these groups (e.g., the right to education, the freedom of religion, the right to preserve
personal names, holy days or traditions as part of their national or cultural identity) and second, to ensure as wide
a geographical representation as possible (North America, Europe, Caucasus and Africa).

Keywords: language; education; name; Muslim; indigenous people; instruments

1. INTRODUCTION

Most countries today are culturally diverse. According to recent estimates, the world’s 184 independent states
contain over 600 living language groups and 5,000 ethnic groups. In very few countries can the citizen be said
to share the same language, or belong to the same ethnonational group.1

We live in a world which is an amazing ethnic, linguistic and religious puzzle, and one of the
hardest challenges faced by modern societies is to respond adequately to the clashing
demands that emerge from different groups in their attempts to protect their cultures and
identities. This situation brings us to the question of what ‘culture’ and ‘identity’ mean. Both
concepts have been defined from various perspectives,2 but it is reasonable to assume that
nobody can claim to be able to provide a precise definition of them and perhaps, as Joseph
Carens argues: “such definitions are rarely helpful, in part because they sometimes exclude
things that are morally and theoretically relevant, in part because the limiting implications of
the precise definition are often lost sight of in subsequent arguments.”3
It is generally recognised that there is an inextricable link between culture and identity. It
is submitted that culture creates identity. When people think about ‘identity’ they have in
mind things like language, ethnicity, religion, symbols (e.g., myths, historical monuments,
and anthems). People feel bound to each other by the fact that they speak the same language,
they belong to the same ethnic group, they have a common faith or they share the same

Corresponding author’s address: Eurac research, European Academy Bolzano, Viale Druso 1/Drususallee 1,
I-39100 Bolzano/Bozen. E-mail: sergiu.constantin@eurac.edu

ISSN 0703-6337 print: ISSN 1477-2280 online © 2003 Taylor & Francis Ltd
DOI: 10.1080/0703633032000133556
190 S. CONSTANTIN AND G. RAUTZ

symbols that distinguish them from others. Culture and identity are not just some abstract
notions for them but ‘living’ concepts that are closely connected to people’s lives. Nothing
could be truer than the fact that:

. . . culture evolves and changes over time; that cultures are influenced, directly and indirectly, by other
cultures; that cultures contain conflicting elements; that cultures are subject to many different, often
conflicting interpretations by both members and outsiders; that the extent to which a particular culture
provides value and meaning to the lives of the people who participate in it may vary among the members of
the culture and may itself be a topic of interpretative dispute; and that members of one culture may be exposed
to, have access to, and even participate as members in one or more other cultures . . .; that identities are partly
subjectively determined and partly objectively imposed and that the mix of these two varies from one context
to another; that people sometimes experience their identity as given, sometimes as chosen, and sometimes as
a combination of the two; that the meaning and salience of a given identity varies from one person to another
among those who share the identity and may shift over time on both of these respects both for the group as
a whole and for individual members within it; that people often have multiple identities, each of which may
have all of the preceding characteristics; and that group identities may or may not reflect cultural differences
between groups (and can be quite powerful even when they do not).4

Cultural diversity5 is a value that has found support all over the world, but the question is
how to put this noble idea into practice. Steps have been taken both at international and
national levels. UNESCO recently adopted the Universal Declaration on Cultural Diversity6,
which proclaims culture as the “common heritage of humanity . . . as necessary for
humankind as biodiversity is for nature.”7 On 7 December 2000, the Council of Europe called
Member States “to examine ways of sustaining and promoting cultural and linguistic
diversity in the new global environment, at all levels” in its Declaration on Cultural
Diversity.8 A number of states all over the world have already established national cultural
policies in order to promote identity and diversity and other countries are now developing
such strategies. The success of their implementation depends on various factors like content,
resources, political will and internal legal and institutional frameworks.
Declarations made by international organisations and national cultural policies are good
initiatives but it is obvious that the lack of proper tools to enforce their principles
substantially reduces their desired impact. It may well be argued, on the other hand, that even
a fine law in force may turn out to be a weak instrument for protecting the culture and identity
of minorities if it only remains a text on a piece of paper. Fortunately there are some people
who can bring the law to life and who can make it effective by applying its provisions in
concrete cases. These people are judges either from national courts (with different levels of
competence), from the supreme or constitutional courts or from the international courts.
The purpose of this article is to analyse some of the most relevant national and
international case laws related to the culture and identity of minorities.

2. THE CULTURE AND IDENTITY OF MINORITIES IN NATIONAL


JURISPRUDENCE

The decisions and judgements of the domestic courts reflect in fact how different societies
respond to the issue of protecting the culture and identity of minorities. Virtually all
democratic states recognise the necessity to protect minority groups9 and to promote their
culture and identity, but when the time to put this ideal into practice comes, the response is
not always the one expected by the minorities. It is questionable whether it is possible to find
a model modus operandi that can be applied by our societies in order to preserve the culture
and identity of minorities and to conciliate the conflict between the majority and the minority
CULTURE AND IDENTITY 191

culture. The fact of the matter is that in some cases it seems to be easy to identify a common
kind of approach by different states vis– à–vis a religious minority group’s specific
demand.10 As regards ethnicity, it is submitted that, as a rule, all states distinguish between
‘national minorities’11 and ‘new minorities’.12 The protection of linguistic minorities may be
achieved by different countries in different ways but all require the fulfilment of some basic
rights.13 However, language and culture are so closely linked that it makes it hard to attempt
to speak about one without mentioning the other. All the national courts’ decisions presented
in this chapter are related to the following groups: linguistic minorities, national minorities,
‘new’ minorities, religious minorities and indigenous people. The selection of the case laws
was made with a double aim: first to provide relevant jurisprudence covering different topics
of interest for these groups (e.g., the right to education, the freedom of religion, the right to
preserve personal names, holy days or traditions as part of their national or cultural identity)
and second, to ensure as wide a geographical representation as possible (North America,
Europe, Caucasus and Africa).
The first case law analysed in the following pages illustrates this approach very well. It is
a Canadian judgement dealing with the French linguistic minority’s right to education.

2.1. Linguistic Minorities


In Arsenault–Cameron v Prince Edward Island 14, the Supreme Court of Canada had to
decide whether the appellants’ right of minority language education had been infringed by
the decision of a lower court. The circumstances of the case were the following: Article 23
of the Canadian Charter of Rights and Freedoms (hereinafter ‘the Charter’)15 mandates
provincial governments to do whatever is practically possible to preserve and promote
minority language education. Accordingly, pursuant to Article 23, the appellants asked the
French Language Board (hereinafter ‘the Board’)16 to establish a French primary school in
the Summerside area. The Board made a conditional offer of French first language instruction
in Summerside. The Minister of Education refused to approve the Board’s offer, choosing
instead to maintain a bus service to a French school in Abram’s Village, some 28 km away.
The Prince Edward Island Supreme Court, Trial Division, found that the circumstances
justified the provision of French language instruction out of public funds in Summerside.
However, the Appeal Division of the Prince Edward Island Supreme Court overturned this
decision. The appellants appealed to the Supreme Court of Canada which decided that their
right to education in their minority language was infringed, and restored the decision of the
Trial Division of The Prince Edward Island Supreme Court.
Besides the importance of the theoretical clash of arguments brought before court by
both parties, this case law is significant because it shows how one inappropriate or rigid
interpretation of legal regulations that should assure in practice the protection of a minority
culture, may prejudice it. The Supreme Court underlined that, in order to be valuable for
the protection of a minority culture, the principle of equality of majority and minority
languages under Article 23 of the Canadian Charter of Rights and Freedoms requires a
different treatment for minority languages, if necessary, according to their particular
circumstances and needs. Sometimes educational services provided for the minority need
not be identical to that provided for the majority, precisely for the purpose of offering a
standard of education equivalent to that of the official majority language.17 This
paradoxical conclusion deserves particular consideration. In this case, the Minister of
Education’s decision to offer bus transportation to minority students was without any doubt
legal, but was this measure effective in promoting French culture and language in the
192 S. CONSTANTIN AND G. RAUTZ

Summerside area? The Minister was required to make French education available and he
believed that he had done so to the extent necessary under the law. Moreover, the Appeal
Division of the Supreme Court of Prince Edward Island held that the advantages that might
result from the establishment of a French language school in Summerside could not
supersede the disadvantages of receiving instruction that would, in the opinion of the
minister, be inferior in pedagogical terms to that offered to the children of the official
language majority.18 Indeed, the province in question has a legitimate interest in the
content and qualitative standards of the educational programmes for the majority and
minority communities and it can impose appropriate programmes in so far as they do not
interfere with the legitimate linguistic and cultural concerns of the minority. Although the
Minister of Education is responsible for making educational policy, his discretion is
subordinate to the Charter. Where a minority language board has been established in
furtherance of Article 23, it is up to the board, as it represents the minority official
language community, to decide what is more appropriate from a cultural and linguistic
perspective.19. The Supreme Court has ruled that:

focusing on the individual right to instruction at the expense of the linguistic and cultural rights of the minority
community effectively restricts the collective rights of the minority community. Here, by using objective
standards, which assess the needs of minority language children primarily by reference to the pedagogical
needs of majority language children, the Minister failed to take into account the special requirements of the
[Article] 23 rights holders. Further, although travel arrangements may, in some circumstances, meet the
requirements of [Article] 23, the Minister also failed to recognise that the [Article] 23 children were faced with
a choice between a locally accessible school in the majority language and a less accessible school in the
minority language, a choice which would have an impact on the assimilation of the minority language
children.”20

In other words, the transportation option met the needs of the individuals, but did not
strengthen and sustain French language and culture in the Summerside area. The bus travel
would have an impact on the assimilation of the minority culture children while travel
arrangements had no cultural impact on majority children. For the minority, travel
arrangements were in large measure a cultural and linguistic issue; they involved not only
travel times but also a consideration of distances because of the impact of having children
sent outside their community and of not having an educational institution within the
community itself.
Another interesting aspect in this case law arose from the question of what is a ‘sufficient
number’ of qualified students to justify instruction in the minority language under Article 23
of the Charter. The Supreme Court ruled that “the relevant number is the number who will
potentially take advantage of the service, which can be roughly estimated as being
somewhere between the known demand and the total number of persons who could
potentially take advantage of the service.”21 The Appeal Division of the Supreme Court of
Prince Edward Island, therefore, erred by applying a more restrictive standard because it
focused on the number of students who demanded education in the minority language at the
date of the trial. The trial judge had found, based on the statistical data on the enrolment of
minority children aged six to eleven, as well as demographic projections for children up to
five years of age in the area, that the relevant number of children who could potentially take
advantage of French language education was considerably higher22 than the one estimated by
the Appeal Division of the Supreme Court of Prince Edward Island. The Court also attached
some importance to the experience of parents in the nearby Charlottetown area where the
projected number of students who were expected to be educated in French was surpassed
once the educational facility was in place.
CULTURE AND IDENTITY 193

The conclusion which can be drawn from this is that the active position of judges in such
case laws related to the protection of the culture and identity of minorities plays a key role.
The judges have to apply the law taking into account in each situation the specific historical,
social, and economic circumstances of the case and not simply adopt a rigid formula that
might be in fact harmful and not helpful for minorities.

2.2. National Minorities


The right to education as a way of preserving the culture and identity of minorities is also the
subject of the next judgement analysed. In Decision no. 114 of 20 July 1999, 23 the
Constitutional Court of Romania gave a verdict concerning the constitutionality of the law
approving Government Emergency Ordinance no. 36/1997, modifying and complementing
the Law of Education no. 84/1995 (hereinafter ‘the Education Law’). In accordance with
article 144(a)24 of the Romanian Constitution (hereinafter ‘the Constitution’), 86 Members of
Parliament (MPs) questioned the constitutionality of the above–mentioned law. They argued
that the provisions regarding the minorities’ right to education in their mother tongue, like
those stipulated in Article 123 of the Education Law25 as set forth in point 48 of the law
approving Government Emergency Ordinance no. 36/1997 modifying and complementing
the Education Law, were unconstitutional because they violated Article 6 and Article 13 of
the Constitution.26
The point of view of the MPs who signed the notification was that the option of
establishing, legally and on request, multicultural higher education institutions in which the
language of instruction is to be determined by the law establishing the institution, as
stipulated in Article 123 of the Education Law, may exclude teaching in Romanian. In their
opinion, “considering the fact that any university is ‘multicultural’, the phrase ‘multicultural
university’ is not meant to ensure the fact that Romanian shall be used as a teaching
language.” It was also emphasised that the criticised provisions were said to conflict with the
recommendations of the European Charter of Regional and Minority Languages and of the
Framework Convention for the Protection of National Minorities, which recommends that
instruction and education in the mother tongue be ensured without thereby impairing
studying or teaching in the official language. For this reason, they considered that Article 123
“exceeds both constitutional provisions and European recommendations in the field.”
The Constitutional Court rejected the MPs’ arguments and decided that the law approving
Government Emergency Ordinance no. 36/1997, modifying and complementing the
Education Law was constitutional. It is obvious that Article 123(3) provides for the fact that
universities are encouraged to develop multicultural structures and mechanisms which agree
with the notion, which is also supported by the MPs, that any university is multicultural. A
multicultural university, in the political sense of the word, is an institution of which the
members are endowed with different cultural identities belonging to different national,
ethnic, racial or religious groups, and in which a) members benefit from their being together;
and b) mechanisms for the promotion of various cultural institutions are created.
One of the MPs’ main arguments was that enforcing Paragraph (1) of Article 123 may
exclude Romanian as a teaching language in a multicultural university. In fact, paragraph (1)
explicitly states that in each particular university the language of instruction shall be
determined by the law establishing that institution. It follows that the unconstitutionality
objection may be raised not against Article 123(1), but possibly against a law establishing
such a multicultural university which would exclude Romanian as a teaching language.
Moreover, the anticipation of the hypothetical contents of future laws establishing
194 S. CONSTANTIN AND G. RAUTZ

multicultural higher education institutions, which is used as a justification for the


unconstitutionality objection, is unwarranted in establishing the constitutionality of an act. As
a matter of fact, it is presumed that any future law shall be adopted in conformity to the
Constitution rather than in breach of it.
The Court underlined that, compared to previous legal norms, the law which was the
subject of the MPs’ notification actually extends the access of national minorities to various
types and levels of education, stating that:

The ability to organise higher education institutions with teaching in the mother tongue, as well as to establish
multicultural universities, does not generate any discrimination against other Romanian citizens. On the
contrary, these provisions are meant to guarantee the equality between citizens belonging to national
minorities and those of Romanian ethnic origin, by ensuring an adequate educational institutional
framework.

It should be noted that, according to Paragraph (1) of Article 123, even when groups,
sections, colleges or faculties are organised within state higher education institutions, the
‘learning of specialised vocabulary’ in Romanian shall be ensured. The Court argued that:
“due to identity of reasons, as well as to the necessity of a consistent interpretation of the
legal provision, it is to be assumed that the same terms shall be enforced in the case provided
for at the end of the same paragraph, i.e., in the case of multicultural institutions, in which
the learning of specialised vocabulary in Romanian shall be ensured as well.”
An interesting and relevant distinction was made by the judges as regards the ‘teaching
language’ and ‘official language’. Article 123(1) employs the notion of the ‘teaching
language’, which is different from that of the ‘official language’ as used in Article 13 of the
Constitution. Neither Article 123, nor any other clause of the law approving Government
Emergency Ordinance no. 36/1997 modifying and complementing the Education Law,
provides that multicultural universities are authorised to use any ‘official language’ other
than Romanian. The use of the ‘teaching language’ is limited to teaching activities (seminars,
courses, relevant scientific work, etc.). Other activities conducted in the multicultural higher
education institution (e.g., drafting of documents, including diplomas, official correspond-
ence, etc.) shall be conducted in the ‘official language’ which, according to the Constitution,
is Romanian.
The Constitutional Court did not find in Article 123 any breach of any provision of an
international document to which Romania is a party but made an unpardonable mistake at
this level. Apparently the judges did not know that at that time that Romania had already
ratified the Framework Convention for the Protection of National Minorities.27 In the
decision it was stated that:
The Court also notices that, since the European Charter of Regional and Minority Languages (adopted in
Strasbourg on 22 June 1992, by the Council of Europe) and the Framework Convention for the Protection of
National Minorities (adopted in Strasbourg on 1 February 1995 by the Council of Europe), which are both
expressly mentioned in the unconstitutionality objection, are not ratified by Romania, these two international
documents do not fall under this Court’s prerogatives of constitutional control, as provided in Article 21 of the
Constitution.

The issue of language, culture and identity is connected with the topic of minority names
which is the subject of the next two Baltic States case laws.
On 21 October 1999, the Constitutional Court of Lithuania made public its Decision on the
compliance of the 31 January 1991 Supreme Council of the Republic of Lithuania Resolution
‘On Writing of Names and Family Names in Passports of Citizens of the Republic of
Lithuania’ with the Constitution of the Republic of Lithuania. 28 Pursuant to Article 102(1)29
CULTURE AND IDENTITY 195

of the Constitution of the Republic of Lithuania (hereinafter the Constitution), the Court was
asked by the Vilnius Regional Court to investigate if the 31 January 1991 Supreme Council
of the Republic of Lithuania Resolution ‘On Writing of Names and Family Names in
Passports of Citizens of the Republic of Lithuania’ (hereinafter the Resolution) conformed to
Articles 18, 22, 29 and 37 of the Constitution.30
The Vilnius Regional Court was investigating a civil case under cassation procedure in
which the applicant, while being issued a new passport as a citizen of the Republic of
Lithuania in a police commissioner’s office, requested to enter his name and family name in
the form used in his mother tongue. The Resolution of the Supreme Council provided that in
passports, the names and family names of citizens of the Republic of Lithuania who are of
Lithuanian and non–Lithuanian nationality shall be written in Lithuanian letters.31 The
Vilnius Regional Court suspended the investigation of the case at law and in order to clarify
whether these provisions are constitutional, it appealed to the Constitutional Court which
decided that the provisions of the Resolution are in compliance with the Constitution.
It seems that this case was viewed by the judges more as a matter of state language
protection than a request related to minority identity. The Court stated in the Decision that:
“. . . the Resolution of the Supreme Council regulates relations of different nature than those
regulated by Article 37 of the Constitution, therefore the said resolution is in compliance with
Article 37 of the Constitution.”
The basic argumentation of the Court was that the constitutional status of the Lithuanian
language may be denied if it is not used in all spheres of public life. The Court held that
Article 22 of the Constitution, which guarantees the inviolability of the private life of an
individual, has no link with the writing of names and family names in the citizen’s passport.
In the judges’ view, the disputed resolution concerns only passports, i.e., an official document
that certifies the relation of an individual to the state. Taking account of the fact that a citizen
of the Republic of Lithuania’s passport is an official document certifying a permanent legal
link between the individual and the state, and the fact that citizenship relations belong to the
sphere of public life of the state, the name and family name of an individual must be written
in the state language. Of course, in their private life people may use their mother tongue, but
someone who asks his/her name to be spelt according to his/her own language’s orthographic
rules is willing to affirm his/her identity in public life as well. The Court did not consider the
fact that one’s name represents a significant component of a distinct ethnic, national or
cultural identity. The norms of the resolution establishing that the name and family name of
an individual must be written in Lithuanian letters in the passport of the citizen of the
Republic of Lithuania according to their pronunciation are applicable to all citizens without
exception, regardless of their nationality or other distinctions. The Court interpreted the
principle of equality and non–discrimination in the restrictive sense that “the nationality of
an individual may not serve the basis for him to demand that the rules arising from the status
of the state language be not applied as far as he is concerned.”32
It is interesting to compare this case law with a similar one from Latvia. On 21 December
2001, the Constitutional Court of Latvia made public its Decision on Compliance of Article
19 of the Language Law and the Cabinet of Ministers August 22, 2000 Regulations No. 295
‘Regulations on Spelling and Identification of Names and Surnames’ with Articles 96 and 116
of the Satversme (Constitution).33 The applicant, after marrying a foreign citizen called
Mentzen, received a passport from the Department of Citizenship and Migration Affairs
spelling her surname Mencena. On page 14 of the passport, it was indicated in English that
the original form of the surname was Mentzen. The applicant considered this measure a
violation of her rights and she addressed to the judicial system. The Court of first instance,
196 S. CONSTANTIN AND G. RAUTZ

the Appellate Court and the Cassation Court, dismissed her claims on the grounds that the
passport had been drawn up in conformity with the legal regulation that requires the
reproduction of foreign names in compliance with the orthographic norms of the Latvian
language. As a result, the applicant requested the Constitutional Court to declare Article 19
of the State Language Law34 and the Cabinet of Ministers August 22, 2000 Regulation No.
295 ‘On Spelling and Identification of Surnames’ as not conforming to Articles 96 and 116
of the Constitution of the Republic of Latvia.35 The applicant held that these provisions
infringed her right to the inviolability of a private life that, according to Article 116 of the
Constitution, may be limited only “in order to protect the rights of other people, a democratic
state system, and the safety of society, welfare and morals.” The applicant argued that the
reproduction of a surname in Latvian cannot be connected with the aforementioned
objectives, therefore this limitation of private life may not be considered as legitimate. She
made reference in this respect to the Judgements of the European Court of Human Right in
cases Stjerna v. Finland (1994) and Burghartz v. Switzerland (1994), in which it was
acknowledged that the name of a person is a component of private life and the fact that the
name is a form of identifying the person, which establishes the connection of the person with
a certain family.
The main question raised by the case was if this limitation of a person’s right through
the reproduction of name and surname may be justified by the benefit gained by the
society. The opinions of different independent experts invited by parties to express their
point of view in the Court were in contradiction. For example one pointed out that: “(i)f
the name of a person is doubted, he/she experiences the feeling that his/her identity is also
doubted . . . The name of the person shall be fixed as it is and not in the way for
everybody to pronounce it.”36
In opposition with this opinion another expert declared that:
[A] surname existed not for the convenience of a person but for the convenience of the society. Therefore in
a definite society the surname is chosen and reproduced under society rules. A person may be better identified
by name and not surname, as during the lifetime the surname may be changed several times. Therefore the fact
whether the psychological vulnerability of one holder of a surname is more important than the feelings of
several millions of the language bearers shall be appraised. No individual has the right of forcing the society
to use unnatural forms, for example, zero inflection forms. It is unconformable with the fundamental
principles of democracy.

The judges admitted that the name of a person is closely connected with the core of his/her
personality and that the reproduction of the surname may be offensive and may cause a
psychological discomfort and social inconveniences. On the other hand, the Court held that
if the spelling of foreign personal names only in their original form was allowed on
documents, the threat to the functioning of the Latvian language as a unified system would
be much greater than the discomfort that a person might experience if the surname in his/her
passport were to be reproduced according to the traditions of the Latvian language.
Therefore, it was ruled that the reproduction of a foreign personal surname in accordance
with the traditions of the Latvian language and spelling in accordance with the norms of the
Latvian language in passports issued in Latvia must be considered as a limitation of one’s
private life that has a legitimate objective: to enlarge the influence of the state language that
helps to further the integration of the people in the society.
It remains to be seen whether this objective is not leading to assimilation in the end. The
Constitutional Court declared that the reproduction of the personal name is not its translation
into Latvian (it is not Latvianization) but only its adjustment to the specific features of the
Latvian grammar.
CULTURE AND IDENTITY 197

The last two decisions reflect in a clear way the concern about problems of national
identity, sovereignty and minorities in the Baltic States. The state language is used as a tool
to maintain the identity of the nation, to unite it and to ensure the manifestation of the
national sovereignty and indivisibility of the nation.37

2.3. ‘New’ minorities


In many European countries, the public debate raised by the concern that the demands of
minority cultures challenging the majority culture may undermine the basic principles of
societies is a reality. As we have seen from the last case laws, in Central and Eastern Europe
the issue of national minorities remains as difficult and as topical a subject as it was during
the whole of the last century. In Western countries, the new minorities constituted by
immigrants and their descendants are now attracting more attention than they probably want.
Of course, when the issue concerns a minority group tradition like female circumcision that
has deep cultural roots in Africa, it can be argued from a strong position that this kind of
practice cannot be accepted in our democratic states.38 But in other situations, things are not
so clear. Can an Islamic veil be a threat to a liberal society? If so, why? Why would someone
object if a Muslim woman chooses to respect the Islamic code of dress, Hijab,39 as a way of
expressing her cultural identity or religious convictions?
The French case known as ‘The Veils Affair’ (L’affaire des Foulards) can, perhaps, offer
some answers. This debate started in 1989 when three schoolgirls who came to a French high
school wearing the Muslim veil were not allowed to enter the classroom.40 In France, the
issue was discussed generally in terms of the compatibility of Islam with the secular
traditions of the French Republic that are believed to prohibit the wearing any kind of symbol
of religious affiliation in any French state school. But this was not the only dimension of the
debate because, inevitably, questions about issues such as Islamic fundamentalism and the
position of women in Islam were brought into discussion. Is it easier to defend a ban on Hijab
when it is viewed as a “a political provocation and as a threat or at least a form of undue
pressure against Muslim girls who do not wear it?”41
On 27 November 1989, the Council of State42 made public its opinion on the case in which
pointed out that:

the wearing of tokens by pupils by which they wish to express their affiliation to a religion, is not in itself
incompatible with the principle of secularity, in as far as it constitutes the exercising of their right to freedom
of opinion and to the manifestation of religious beliefs . . . [But] this liberty would not permit pupils to flaunt,
in a conspicuous fashion, symbols of religious affiliation which, by their very nature, by the conditions under
which they are worn individually or collectively, by their ostentatious character or by the claims they lay,
would constitute an act of pressure, provocation, proselytism or propaganda [and thus] would infringe upon
the dignity or the liberty of the said pupils or of other members of the educational community, endanger their
health or their security, obstruct the course of the educational activities and the educational role of teachers,
or, finally, disrupt the order of things at the institution or the normal functioning of the public service.43

It would be ridiculous to assert that in French schools students wearing a Christian cross
cannot be found. Is this not an infringement of the principle of secularity? It might be
argued that a cross is not as ostentatious and provocative as a veil.44 But it must be
emphasised that Hijab is not only a symbol and way of expressing the faith in Islam,
wearing it is also an obligation for Muslim believers. And “in such a context the
prohibition interferes with religious practice in a way that calls for stronger justification
than appealing to a political tradition of secularism”.45 The debate on this issue continues
in France and even though
198 S. CONSTANTIN AND G. RAUTZ

various courts and government bodies have considered whether denying some Muslim girls the right to wear
headscarves in public schools46 constituted a violation of the right to practice their religion; there has been no
definitive national decision on the issue. In May 2000, the Administrative Court in Nantes ruled in favour of
a Muslim woman who was refused naturalisation because she wore a veil during her final interview.47

Another interesting case involving a Muslim woman wearing Hijab is Lucia Dahlab v
Switzerland.48 A school teacher was forbidden to wear the veil during her teaching activities
because of the risk of affecting the religious feelings of her pupils and their parents. In the
view of the judges there was an incompatibility between her veil and the message of
tolerance, respect for others, equality and non–discrimination that, in a democratic society,
all teachers have to transmit to their pupils. It was stressed that the interdiction only regards
her teaching activities. Geneva’s Council of State declared that a teacher has to respect:
the objectives assigned to the public school and the obligations compulsory for the school authorities,
including the strict obligation of confessional neutrality . . . The litigious clothing . . . represents . . . even
independently of the applicant’s will, the vector of a religious message, in a way which in this particular case
is strong enough . . . to leave the purely personal sphere of the appellant and have an effect on the institution
that she represents, namely the public school.49

A federal court confirmed the decision of Geneva’s Council of State and ruled that the ban
on wearing a veil which clearly indicates the affiliation to a definite confession is the
expression of Geneva’s legislators’ will to respect in educational matters the principles of
religious neutrality and the separation of the Church from the state. Therefore, even if the
measure represents an infringement of the appellant’s freedom of religion, it is legitimate and
it has a sufficient legal base.50
The dispute over the Muslim veil is an ongoing one and is probably producing new case
laws right now in different parts of the world. A single but striking example comes from
Russia. On 14 June 2002, Radio Free Europe informed listeners that around 3000 Muslim
women residents of the Republic of Tatarstan (Russian Federation) had refused to obtain new
Russian passports because they were not allowed to have their photos taken wearing Hijab.
Officials explained that Interior Ministry regulations require that the passport photo be in full
face without any headgear, even though women in Bashkortostan and Daghestan were
reportedly allowed to have their photos taken in accordance with their faith.51 On 5 August
2002, it was announced that a raion52 level court in Kazan had ruled on 2 August against a
lawsuit filed by three Muslim women from Nizhnekamsk who were seeking the right to be
photographed for their passports wearing their veils.53 The women appealed to Republic of
Tatarstan Supreme Court which on 26 August upheld the decision of the Kazan court that
rejected the complaint. According to the report, the plaintiffs intend to continue the legal
battle by appealing to the federal courts.54

2.4. Religious Minorities


The next case law also regards a Muslim community but brings into discussion another
aspect of the group’s identity, namely its religious holidays. In 1996, the Assembly of the
Republic of Mozambique approved the Islamic Holidays Bill declaring the days of two
religious Islamic festivals (the end of Ramadan and the Day of Sacrifice, or Id al Fitr and Id
al Adha) as national holidays. The President of the Republic refused to promulgate this law
and sought the opinion of the Supreme Court which on 27 December 1996 ruled in its
Decision on constitutionality of Islamic Holidays Bill 55 that the law was unconstitutional
because it violates Article 9(1), Article 66, Article 69 and Article 78 of the Constitution.56 The
Court held that:
CULTURE AND IDENTITY 199

the combination of the principle of secularity of the State and the principles of liberty and culture and equality
before the law impose on the State the need to preserve neutrality in relation to religious matters and to abstain
from being biased towards a particular religion or from granting it favours to the detriment of others. These
needs would not, however, be met if national holidays were to be declared on the days of Islamic religious
festivals without the religious festivals of other professed faiths receiving the same treatment

The religious structure of Mozambique looks like a jigsaw puzzle. The Department of
Religious Affairs of the Ministry of Justice registered 394 distinct denominations of
religions. Among the ones which practise a recognised religion, 24 per cent are Roman
Catholic, 22 per cent are Protestant, and 20 per cent are Muslim. Many Muslim clerics
disagree with these statistics, claiming that Islam is the country’s majority religion. Among
Muslims, only a generic ‘Islamic’ community (Sunni) and the Ismaili community are
registered. Among Christians, the Roman Catholic, Anglican, and Greek Orthodox
churches are registered along with Presbyterian, Methodist, Baptist, Congregational,
Seventh–Day Adventist, Mormon, Nazarene, and Jehovah’s Witnesses groups, as well as
many evangelical, apostolic, and Pentecostal churches. The Zion Christian Church, the
largest of the African independent churches in Mozambique, also has a large number of
adherents. Jewish, Hindu, and Baha’i communities are also registered and constitute small
minorities.57 Taking this religious diversity into consideration, the Supreme Court declared
that the state had to respect individual beliefs, and it broke this rule when it imposed on
the entire population dates that were sacred to only one religion. It was underlined that the
measure to proclaim Ide–Ul–Fitre and Ide–Ul–Adha national holidays, far from leading to
tolerance, understanding and unity, might undermine all three of these goals: “It could
constitute a focus of social disharmony and lead to religious intolerance, with all the
nefarious consequences that flow from this, and which would, in the final analysis strike
a blow against national unity.”58
It is undoubtedly true that imposing the holy day celebrations of one religion on the
members of other creeds is illegitimate and that the states should take appropriate measures
in order to ensure the right of religious groups to celebrate their own sacred days. We should
consider, for example, the case of Spain, a country with a Catholic majority population and
Jewish and Muslim minorities. In 1992, the government signed Agreements of Cooperation
between the State and both the Federation of Israelite Communities and the Islamic
Commission,59 in which it is specified that minorities’ religious holidays may replace those
established for the majority.60

2.5. Indigenous People


To complete this general survey on national case laws related to ethnic, linguistic and
religious minorities, it is also worthwhile analysing a judgement referring to indigenous
population culture and identity. In R v. Adams,61 the Supreme Court of Canada allowed
the appeal of a Mohawk62 who was convicted of fishing in Lake St. Francis without a
license, contrary to Article 4(1) and Article 5(9) of the Quebec Fishery Regulations
(hereinafter the Regulation),63 which prohibit all fishing without a license, whether for
food or any other purpose. He challenged his conviction on the grounds that the
regulations unjustifiably infringed his rights under Article 35(1) of the Canadian Charter
of Rights and Freedoms (hereinafter the ‘Charter’),64 which recognised and affirmed
existing aboriginal and treaty rights, since the Mohawk nation possess aboriginal title to
the fishing grounds and/or a free–standing aboriginal right to fish in the area. At first, the
Quebec Superior Court found that the aboriginal title had been extinguished but an
200 S. CONSTANTIN AND G. RAUTZ

aboriginal right to fish remained. However, the Court held that Parliament retained the
power to regulate fishing despite such rights and that, therefore, the regulations could not
be said to infringe Article 35(1). In the next phase of the legal battle, the Quebec Court
of Appeal dismissed the plaintiff’s appeal, declaring that an aboriginal right to fish
cannot exist independently of an aboriginal title to the lands of the fishing area which, if
it existed, had already been extinguished. The appellant appealed to the Supreme Court
of Canada on the grounds that the aboriginal title to the fishing ground had not been
extinguished and, even if it had been, an aboriginal right to fish is capable of existing
independently.
The Supreme Court held that the Mohawks fished for food in Lake St. Francis as an
element of a practice, custom or tradition integral to their distinctive culture prior to
European contact. There is continuity between current Mohawk fishing activities and those
prior to contact with Europeans, and fishing in Lake St. Francis for food was a significant
part of the life of the Mohawks also prior to such contact. The Supreme Court of Canada
accepted the appeal concluding that:
although flooding the fishing area in 1845 and the signing of a surrender agreement concerning land in 1888
may have demonstrated a clear and plain intention in the Crown to extinguish any aboriginal title to the lands
of the fishing area, neither event demonstrated a clear and plain intention to extinguish the appellant’s
aboriginal right to fish for food in the fishing area. . . . The Mohawks’ aboriginal right to fish for food in Lake
St. Francis is protected under Article 35(1) because they have fished for food on the tract of land in question
in a manner sufficiently significant and fundamental to their culture and social organisation for a substantial
and continuous period of time. This right, which was not extinguished by a ‘clear and plain intention’ of the
Government, was infringed by the Quebec Fishery Regulations.

3. CONCLUSION

What conclusion can be drawn from these domestic case laws? It is submitted that they prove
once again that it is not possible to speak about a general modus operandi but a series of
‘common attitudes’ towards minority groups’ demands can be identified. These attitudes are
influenced by political, historical and social factors that are often in conflict with each other.
The trend in national jurisprudence reflects the evolution of the society itself. For example,
it is reasonable to assume that the present restrictive approach of the Baltic countries’ judges
as regards language issues is caused not only by a rigid interpretation of their legislative
framework, but has deep roots in those countries’ dramatic historical experience. It will be
interesting to see whether the long–expected NATO umbrella protection65 will bring a wind
of change in the future to the minority rights questions in these states due to a more relaxed
political environment.
Thus, national jurisprudence offers a more realistic view of the protection of minority
groups than the official position of the states. A country may have a wonderful anti–
discrimination legislation to put in the ‘shop window’ but a widespread discrimination
against a minority group like the Roma, for example. It is useful to review national courts’
decisions in order to have a more accurate representation of the situation.

Notes

1. W. Kymlicka (1995), p. 1. In fact, at the present, with the addition of East Timor in May 2002, there are 193
sovereign nations in the world, 61 dependent areas, and six disputed territories. For details about the languages,
ethnic groups and religions of countries of the world see < http://www.infoplease.com/countries.html > [visited
on 21 August 2002].
CULTURE AND IDENTITY 201

2. For various definitions of ‘culture’ see, for example, the Intercultural Studies Project webpage: < http:/
/carla.acad.umn.edu/culture.html > [visited on 21 August 2002].
3. J. Carens, (2000), p. 14.
4. Ibid., p.15.
5. This term is used sometimes as a synonym for ‘multiculturalism’ but the latter concept has a broader meaning.
For comments on cultural identity and multiculturalism see W. Kymlicka (1995).
6. The Universal Declaration on Cultural Diversity was adopted by the 31st Session of UNESCO’s General
Conference, Paris, 2 November 2001. The full text of the document is available on the Internet: < http:/
/www.unesco.org/confgen/press_rel/021101_clt_diversity.shtml > [visited on 21 August 2002].
7. UNESCO’s Declaration defines culture as a “set of distinctive spiritual, material, intellectual and emotional
features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways
of living together, value systems, traditions and beliefs.”
8. The Council of Europe’s Declaration on Cultural Diversity was adopted by the Committee of Ministers on 7
December 2000 at the 73rd meeting of the Ministers’ Deputies. The full text of the document is available on
the Internet: < http://cm.coe.int/ta/decl/2000/2000dec2.htm > [visited on 21 August 2002].
9. But it must be emphasised that the level of recognition of minorities is different from country to country: To give
just two relevant examples: Greece recognises only the existence of religious minorities; in France, officially;
there are no linguistic minorities.
10. e.g. the Muslim women who respect Hijab (Islamic code of dress) or ‘Jehovah’s Witnesses.’
11. There is no generally accepted definition of ‘national minorities’. For the purposes of this paper, I consider
‘national minority’ as defined by Council of Europe’s Recommendation 1201 (1993). The full text of the
Recommendation is available on the Council of Europe’s page : < http://www.coe.int > [visited on 21 August
2002].
12. I understand ‘new minorities’ to mean groups constituted by immigrants and their descendants. Even though
they want to be integrated into society and to be accepted as full members of it, they are willing to preserve their
ethnic identity and culture. These groups are called often ‘ethnic minorities/groups’ in order to differentiate
them from ‘national minorities’. See W. Kymlicka (1995).
13. See article on ‘Language Rights’ in this issue.
14. The decision was made public on 13 January 2000. The full text of the judgement is available on the Internet
on the Supreme Court of Canada’s website: < http://www.scc–csc.gc.ca > [visited on 21 August 2002].
15. The Canadian Charter of Rights and Freedoms came into force in 1982. The full text of the document is
available on the Internet : < http://laws.justice.gc.ca/en/charter > [visited on 21 August 2002].
In accordance with Article (Section) 23:
(1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority
population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a
province where the language in which they received that instruction is the language of the English or
French linguistic minority population of the province have the right to have their children receive
primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction
in English or French in Canada, have the right to have all their children receive primary and secondary
school instruction in the same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and
secondary school instruction in the language of the English or French linguistic minority population of a
province:
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient
to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction
in minority language educational facilities provided out of public funds.
The full text of the document is available on the Internet: < http://laws.justice.gc.ca/en/charter > [visited on
21 August 2002].
16. The French School Board (Commission Scolaire de Langue Française) is the body which has jurisdiction over
and administers French language instruction in the province in accordance with the School Act and the
Regulations of the School Act. For details regarding the functions of the Board see the excerpts from the School
Act Regulations, quoted in the decision of the Supreme Court of Canada in this case.
17. Arsenault–Cameron v. Prince Edward Island, p. 2.
18. Ibid., p. 4.
19. Ibid., p. 15.
20. Ibid., p. 2.
21. Ibid., p. 12.
22. The Supreme Court of Canada admitted that 306 students could potentially take advantage of French language
instruction (155 students then eligible plus 151 students who would be coming into the school system) instead
of 65 students as was concluded by the Appeal Division of the Supreme Court of Prince Edward Island.
202 S. CONSTANTIN AND G. RAUTZ

23. The summary of the decision is available on the Internet on the MIRIS website–Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
24. Article 144(a) of the Romanian Constitution stipulates that the Constitutional Court has the power to adjudicate
on the constitutionality of laws, before promulgation, on notification by the President of Romania, the president
of either chamber of parliament, the government, the Supreme Court of Justice, a number of at least 50 deputies
or at least 25 senators, as well as ex officio on initiatives to revise the constitution.
25. In accordance with Article 123 of the Education Law :
(1) Within higher educational institutions run by the state in groups, sections, colleges and faculties, teaching
in the mother tongue may be organised, according to the law, at request. In this case, the acquisition of the
specialised terminology in the Romanian language shall be assured. At request and according to law,
multicultural higher educational institutions can be established. The languages of teaching shall be
determined in the foundation law.
(2) Persons belonging to national minorities shall have the right to set up and manage their own private higher
educational institutions according to the law.
(3) Institutions of higher education with multicultural structures and activities shall be encouraged in the
promotion of harmonious inter–ethnic relations and of integration both at national and European levels.
(4) All Romanian citizens can register and study at all educational institutions teaching in Romanian or in the
languages of national minorities irrespective of their mother tongue or the language in which they had
studied previously.
Excerpts of the document are available on the Internet: on the MIRIS website – Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
26. Article 6 of the Constitution, paragraph (1), provides for the recognition and the guarantee of the right of persons
belonging to national minorities to preserve, develop and express their ethnic, cultural, linguistic and religious
identity. Paragraph (2) of the same article provides that “protecting measures taken by the Romanian State for
the preservation, development and expression of identity of the persons belonging to national minorities shall
conform to the principles of equality and non–discrimination in relation to the other Romanian citizens.” The
provisions of Article 13 of the Constitution set forth that Romanian is the official language in Romania
The full text of the document is available on the Internet: on the MIRIS website – Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
27. Romania signed the Council of Europe’s Framework Convention for the Protection of National Minorities on
1 February 1995 and ratified it on 11 May 1995. It entered into force 1 February 1998 and the Constitutional
Court’s judgement was made 20 July 1999.
28. The full text of the document is available on the Internet on the MIRIS website – Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
29. According to Article 120 (1) of the Lithuanian Constitution, the Constitutional Court shall decide whether the
laws and other legal acts adopted by the Seimas are in conformity with the Constitution and whether or not legal
acts adopted by the president and the government violate the Constitution or laws.
The full text of the document is available on the Internet on the MIRIS website–Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
30. Article 18 stipulates that the rights and freedoms of individuals shall be inborn. Article 22 deals with the
inviolability of private life. According to Article 29, everyone is equal before the law, without any restriction
based on sex, race, nationality, language, origin, social status, religion, convictions, or opinions. Article 37
assures the right of citizens who belong to ethnic communities to foster their language, culture, and
customs.
31. The full text of the document is available on the Internet, on the MIRIS website – Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
32. See endnote 28.
33. The full text of the document is available on the Internet on the MIRIS website – Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
34. Ibid.
35. Article 96 determines that everyone has the right to the inviolability of a private life. According to Article 116,
this right may be subject to restrictions in circumstances provided for by law in order to protect the rights of
other people, the democratic structure of the state, and public safety, welfare and morals.
The full text of the document is available on the Internet on the MIRIS website–Minority Rights Information
System < http://www.eurac.edu/miris > [visited on 21 August 2002].
36. See endnote 33.
37. To illustrate this, we should consider, for example, an excerpt from the Latvian Constitutional Court’s
Decision:
Taking into account the historical features and the fact that the numerical structure of the Latvians in the state
territory has decreased during the twentieth century and in the biggest cities, including Riga, Latvians are a
minority (see The Statistic Year Book of Latvia, 2001. Riga, CSP, 2001, p. 41) and that the Latvian language only
recently has regained its status as the state language, the necessity for protecting the state language and
strengthening its usage is closely connected with the state of the Latvian democratic system.
CULTURE AND IDENTITY 203

38. The argument that this practice should be permitted because it has important significance for some new minority
groups was, however, advanced in public debate and the states cannot ask them ‘simply to abandon their pre–
existing cultural and religious commitments.’ For details on this topic see J. Carens, (2000).
39. For articles about Hijab and women in Islam see e.g. The Muslim Sisters’ Homepage: < http://www.jannah.org/
sisters/ > [visited on 21 August 2002].
40. For a chronology of the debate (in French) see < http://www.unc.edu/depts/europe/conferences/Veil2000/
chronol1.htm > [visited on 21 August 2002].
41. J. Carens, (2000). p. 158.
42. The Council of State (Le Conseil d’Etat) is an advisory body of primary importance in France. As a high
administrative authority, it can be solicited by the state and has the capacity to advise state authorities on various
legal issues, including how conflicting interpretations of the law should be applied in particular cases; it has the
final power to assure the unity of jurisprudence and the power to appeal all administrative rulings. For details
see also < http://www.conseil–etat.fr > [visited on 21 August 2002].
43. The main excerpts from the Council of State’s opinion (Les Principaux Passages de l’Avis du Conseil d’Etat)
are available (in French) on the Internet: < http://www.unc.edu/depts/europe/conferences/Veil2000/Annex-
es.pdf > [visited on 21 August 2002].
44. On 7 December 1989 the first ministerial circular (circulaire Jospin) was made public, by which teachers had
to decide on a case–by–case basis whether to ban the wearing of the Islamic veil. On 28 October 1993 the
second ministerial circular pointed out the need to respect the principle of secularism (laı̈cité) in public schools.
On 21 September 1994, the third ministerial circular (circulaire Bayrou) distinguished between ‘discrete’
symbols that may be tolerated in public schools, and ‘ostentatious’ symbols, including the Islamic veil that must
be banned from public schools. See < http://www.unc.edu/depts/europe/conferences/Veil2000/articles/keye-
vents–headscarf.htm > [visited on 21 August 2002].
45. J. Carens, (2000). p. 158.
46. The expression ‘public school’ is taken here to mean a school financed by the state.
47. US Department of State 2001 Country Reports on Human Rights Practices, 4 March 2002, < http:/
/www.state.gov/g/drl/rls/hrrpt/2001/eur/8253.htm > [visited on 21 August 2002].
48. On 16 October 1996 Geneva’s Council of State made public its opinion on the case. In 1998, after the appellant
exhausted all domestic remedies, the case was brought before the European Court of Human Rights (hereinafter
ECHR). On 15 February 2001, ECHR found the application ill–founded and rejected it. The full text of the
ECHR’s Decision is available (in French) on the Internet: < http://www.uni–tuebingen.de/kirchenrecht/
nomokanon/urteile/eughmr010215.htm > [visited on 21 August 2002].
49. See ECHR’s Decision in this case.
50. Ibid.
51. ‘Passport regulations require Muslim women to remove head coverings’, Radio Free Europe/Radio Liberty,
RFE/RL Newsline, 14 June 2002, < http://www.rferl.org/newsline/2002/06/140602.asp > [visited on 21 August
2002].
52. Raion is a territorial–administrative unit in the Russian Federation.
53. ‘Muslim women lose legal fight to appear with heads covered in passport photos’, Radio Free Europe/Radio
Liberty, RFE/RL Newsline, 5 August 2002, < http://www.rferl.org/newsline/2002/08/050802.asp > [visited on
21 August 2002].
54. ‘. . . [The] court upholds ban on headscarves in document photos’, Radio Free Europe/Radio Liberty, RFE/RL
Newsline, 26 August 2002, < http://www.rferl.org/newsline/2002/08/260802.asp > [visited on 26 August
2002].
55. The summary of the judgement is available on the Internet on the INTERIGHTS website – The International
Centre for the Legal Protection of Human Rights: < http://www.interights.org > [visited on 21 August
2002].
56. Article 9(1) declares Mozambique a secular state. Article 66 stipulates that all citizens are equal before the law
regardless of colour, race, sex, ethnic origin, place of birth, religion, educational level, social position, the legal
status of their parents, or their profession. Article 69 regards the principle of non–discrimination and Article 79
specifies that all citizens have the freedom to practice or not to practice a religion. The full text of the document
is available on the Internet: on the website of the T.C. Williams School of Law’s Constitution Finder Project at
Richmond University < http://confinder.richmond.edu/moz.htm > [visited on 21 August 2002].
57. US Department of State 2001 Country Reports on International Religious Freedom, 26 October 2001, < http:/
/www.state.gov/g/drl/rls/irf/2001/5657.htm > [visited on 21 August 2002].
58. See endnote 54.
59. The full texts of both documents are available on the MIRIS website on the Internet – Minority Rights
Information System http://www.eurac.edu/miris [visited on 21 August 2002].
60. Article 12 (2) of the Agreement of Cooperation between the State and the Federation of Israelite Communities
stipulates that:
The holy days listed below which, according to the Jewish law and tradition, are religious holidays, may replace
those established in article 37.2 of the Workers’ Statute as the general rule, under the same terms as paid
holidays, with no time pay–back, at the request of the persons indicated in the preceding paragraph and under
the conditions provided therein.
204 S. CONSTANTIN AND G. RAUTZ

– New Year (Rosh Hashaná) 1st and 2nd day


– Day of Atonement (Yom Kippur)
– Cabin Holiday (Succoth)1st, 2nd, 7th and 8th day
– Passover (Pesaj)1st, 2nd, 8th and 9th day
– Pentecost (Shavuot), 1st and 2nd day.
Article 12 (2) of the Agreement of Cooperation between the State and the Islamic Commission stipulates
that:
The holy days listed below which, according to the Islamic Law, are religious holidays, may, subject to
agreement between the parties concerned, replace those established in article 37 of the Workers’ By–Laws as
a general rule, under the same terms as paid holidays with no time pay–back, at the request of persons of the
Muslim faith belonging to the Islamic communities that are members of the Islamic Commission of Spain.
– Al Hiyra, corresponding to the 1st day of Muharram, first day of the Islamic New Year.
– Achura, tenth day of Muharram
– Idu Al–Maulid, corresponding to 12 Rabiu al Awwal, nativity of the prophet
– Al Isra Wa Al–Mi–Ray, corresponding to 27 Rayab, date of the Night of Determining and the prophet’s
Ascension
– Idu Al–Fitr, corresponding to the 1st, 2nd and 3rd days of Shawwal, which celebrates the culmination of the
Ramadan fast.
– Idu Al–Adha, corresponding to the 10,11 and 12 Du Al–Hyaah, to celebrate the sacrifice made by the prophet
Abraham.
61. The decision was made public on 3 October 1996. The full text of the judgement is available on the Internet on
the Supreme Court of Canada website: < http://www.scc–csc.gc.ca > [visited on 21 August 2002].
62. The Mohawk are an Iroquoian–speaking North American Indian tribe, the easternmost group of the Iroquois
League. For more information about the Mohawk nation see the Mohawk nation of Akvesasne website, for
example: < http://www.peacetree.com/akwesasne/home.htm > [visited on 21 August 2002].
63. At the time at which the appellant was charged, Articles 4 (1) and 5 (9) of the Quebec Fishery Regulations
provided:
Article 4(1) Subject to subsections (2), (3), (7.1), (18), and (20), no person shall fish unless he is the holder of
a license described in Schedule III.
Article 5(9) The Minister may issue to an Indian or an Inuk, to a band of Indians or to an Inuit group, a special
license permitting, subject to the conditions set out therein, the catching of fish for food.
See the text of the Supreme Court of Canada judgement.
64. See endnote 15.
65. At the NATO Summit in Prague (21 November 2002) NATO Heads of State and Government formally invited
seven states (including Estonia, Latvia, Lithuania) to Accession Talks with NATO. The invited countries are
expected to join NATO in 2004.

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