A/CONF.189/PC.2/22
page 17
Rights and particularly the Committee on the Rights of the Child rejected this interpretation as
incompatible (according to that Committee) with the Convention on the Rights of the Child.60 In
general, as rightly noted by the Committee on Economic, Social and Cultural Rights in its
General Comment No. 13, “corporal punishment is inconsistent with the fundamental guiding
principle of international human rights law enshrined in the Preambles to the Universal
Declaration of Human Rights and both Covenants: the dignity of the individual”
(E/C.12/1999/10, para. 41).
56.
The second example can be put in the form of a question - which indeed has been raised
in France in highly polemical terms and with much media coverage - concerning the principle of
the secular nature of the Republic in general and the school system in particular, on the one hand,
and freedom of conscience on the other. Are or are not the wearing by pupils of signs of
membership of a religious community and, by extension, the practice of certain rites, compatible
with the very rationale and functioning of the public school system and do they warrant
restrictive measures or even expulsion of the pupils concerned? Asked for a formal opinion, the
French Council of State has given a very hedged answer, appealing extensively to international
provisions, but highlighting the complexity of the question and the imperative need for prudence
in this area.
57.
In its opinion dated 27 November 1989, the Council of State first defined what was
meant by “secular” and then, on the basis of that definition, to which we shall return, clearly
stated the principle that “the wearing of religious signs is not in itself incompatible with the
secular principle”.61 The applicability of this principle is not absolute; the Council of State
makes it subject to conditions some of which evoke the international instruments on the subject.
The wearing of religious signs:
(a)
must respect the liberty of others and therefore excludes the wearing of signs
whose ostentatious or assertive nature would amount to an act of pressure or provocation,
proselytism, or propaganda;
(b)
must not be detrimental to the dignity or freedom of the pupil or of other members
of the school community, nor jeopardize their health or safety;
(c)
does not exempt pupils from their scholastic duties and must not interfere with
teaching activities;
(d)
system.
must not disturb public order or the normal functioning of the public education
58.
The conditions laid down are, as we can see, numerous; they are based on principles so
universal as to preclude any local specificity: respect for public order, for scholastic duties, for
the freedom of others, and for dignity. It is, on the other hand, the premises of the Council of
State’s argument which are liable to stir a debate in regard to the subject of this study. The
question is simple: must public education, in particular at the primary and secondary levels, be
secular, and do the requirements of secularity, the conditions of which must be defined, have