The European Human Rights Model - Coursework Example

The European Human Rights Model Introduction The interpretation as well as the application of international human rights conventions has never been an easy task1. Even though the international courts have been tasked with the responsibility of interpreting the international human right conventions, the function of trying to protect the human rights against possible state interference has not t been an easy one. This is despite the competence that such courts have. These international courts must always exercise great skills and expertise so as to be able to accommodate the expectations of the citizens on human right protection. This is in addition to taking into account the social settings which are ever changing and the will of the states. In determining and analyzing whether a member state of the Council of Europe has violated rights that are protected by the conventions, constant balancing between the human rights in the region and the state democracy is normally done. The doctrine of the margin of appreciation has been widely used in determining the human right violation cases and issues. This has been especially in areas like religious liberty and morality concerns2. In doing so it has also been hoped that when legal decisions that are related to human rights protection and the Convention are being made, the prevailing conditions in the specific countries are taken into consideration. This was meant to ensure that the decisions are made with the interest of the party in question in mind so as to ensure that their rights are not violated in any way3. This paper will discuss the margin of appreciation and the way the doctrine has been used among European counties. It will also outline the main characteristics of the doctrine of margin of appreciation taking into account the two versions of the doctrines and how they have had impact on human rights protection. This will be done in order to determine whether the doctrine is a legitimate tool which allows for flexibility within the European human right model or if it is just a tool that is being used by member states to protect autonomy of the states and countries. The Margin of Appreciation Since Handyside v. United Kingdom4, the margin of appreciation has heavily been adopted and used in the ECtHR. The purpose of this doctrine has been to grant deference to state judgments in order to protect the rights which are set out in the Convention. Various reasons for justification of the deference have been given by the court. Originally the margin of appreciation was developed in response to the concerns by the member states that the Conventions Rights would prohibit the states from implementing their state security measures. This lead to the development of this doctrine to help respond to this concern. In order for a state to be awarded this doctrine by the ECtHR the member state should and must have reasonable relationship between the specific objectives to be achieved and how that specific objective is to be achieved through the use of the doctrine. A strict approach is normally used in awarding the doctrines. Five principles have been widely used by the ECtHR in determining whether or not to award the doctrine to a member state. These five principles that have been used by the court in determining whether to issue the doctrine to a member state are meant to ensure that the states does not use the doctrine in a way which will contravene the Convention. The use of the doctrine has elicited different views from different quarters on the importance, validity and the impact that the doctrine has had on human right protection among member states. It has been observed that the system of human right protection in Europe is a product of division of labour between the various member states and the ECtHR5 The doctrine has allowed the courts to be responsible for the protection whereas the Strasbourg court is tasked with intervening in the cases where the remedies that are available in the states have been exhausted6. In areas where the is no consensus among the member states such as morality and religion, the state courts have been given the powers to deal with such issues and their views and decisions are normally accepted by the ECtHR. This is because it is argued that the states are in direct contact with the mainsprings and the social circumstances related to the human right protection issues. Due to existence of this doctrine the ECtHR now only has the function of carting out an examination of the compatibility between state measure and the Convention provisions. In addition to that the doctrine has made necessary to review whether states have overstepped their margin of appreciation in the protecting Convention Rights. This normally entails particularized and contextual review of the challenged measures taking into consideration the internal situations in each of the states. This is in addition to considering the legal, political as well as the social circumstances in a particular country in any given context of human right violation that is in question. The margin of appreciation has been heavily criticized for being an interpretative device which has been used to make it difficult to generalize the legal issue and answers associated with human rights protection. It has also been argued that it has provoked structural incongruence and endangered legal certainty. Moreover, some critics have argued that the margin of appreciation has prevented the Convention from being able to consolidate a good and focused reliable system of protecting human rights in the region. Margin of Appreciation and Flexibility The doctrine of the margin of appreciation was first used in the Handyside v. United Kingdom. This case concerned the publication of a book that was intended to be used by children. A chapter in this particular book discussed sexual behavior in way that was deemed to be too explicit. In this case, the ECHR was willing to allow a limitation of the freedom of expressions in the protection of public morals. The application of this doctrine proved to be of particular importance since it helped in amicable solving the dispute that was raised .Without the flexibility that is provide in the doctrine the ECHR could not have been able to handle the case. One of the areas where the margin of appreciation has been praised is in ensuring flexibility. The margin of appreciation provides a mechanism for ensuring rhetorical flexibility in the human rights protection7. This provides a mechanism through which the decisions of the ECtHR can be legitimized over the decision of the state on human right protection. In addition to that the margin of appreciation has at the same time been a reflection of democratic pluralism in Europe. This has been one of the major reasons why the several member states have accepted and embraced the margin of appreciation. In Europe, one of the major issues that have interfered with human right protection plans has been the lack consensus or various aspects8. This is as a result of the fact that most of the European countries have different political structures, cultures and religions. Due to this difference, defining a common standard to be used by the countries has always proved to be a daunting task. This is a very huge problem that hindered human rights protection. In response to this problem there has always been the need to design a flexible way that could not only promote human right protection but also ensure that it handled the critical as well as the sensitive aspects of human rights protection. One of the greatest ways that has been used to achieve this is by allowing states to make decisions on various human right protection aspects that are related to matters contained in the convention. This has effectively been done through the margin of appreciation9. The margin of appreciation is a doctrine of international human right laws which not only prevent the courts from imposing unhelpful decisions but at the same time allowing for flexibility in human right protection10. This way it has ensured that the decisions made by courts are consistent with universality of human rights. Through it the member states have been able to ensure that the Convention is not contravened by adhering to the doctrine and its principles Margin of Appreciation and Complex Human Rights Issues One other area where the doctrine of margin of appreciation has had great and tremendous influence has been in the understanding of complex human rights matters such as religion and morality. Religious freedom is one of the major areas where the margin of appreciation doctrine has been widely used to help understand human rights. The right of religious freedom is recognized in the Article 9 of the convention11. The interpretation the right of parents to educate their children in accordance to their own religion and beliefs has also been better understood through the application of the doctrine. This is an interpretation of the right to religious freedom and this is found in the Article 2 of the protocol. In these matters, the ECtHR has normally granted a very broad and wide autonomy which has opened ways for the state rules to prevail12. In some of the decisions that have been made based on the margin of appreciation, contractions have however arisen indicating that despite the benefits of the doctrine, it also raises challenges which in turn affect human right protection. In most cases, the doctrine of margin of appreciation has allowed the acceptance of state decisions on cases involving human rights13. This includes giving to autonomy to the states in sensitive matters like religion and morality right. .However, the decisions that have been made by the member states and accepted by the Court at times raises the question on whether the doctrine of appreciation promotes universality of human rights or restricts it. There are two cases that clearly show the contradictions that occur due to the doctrine when it comes to right to religious freedom that raises the question as to whether the doctrine is a true tool for flexibility or just a tool for national sovereignty. The Lautsi vs. Italy 14case and the Şahin v. Turkey provides two areas where the doctrine has been questioned. In the first case which involved an Italian parent who was questioning the presence of a crucifix in the class used by his children, the Italian state court ruled that the presence of crucifix did not in any way interfere with the religious rights of the parent who wanted to raise his children in secularism. When the matter was brought before the ECtHR the decision by the Italian court was held on the basis of the margin of application. The Italian court had argued that the presence of crucifix was a regulatory requirement and its presence in the classroom was not in any way a violation of the right to religious freedom. Another case that has shown the doctrine in use is the Şahin v. Turkey. This case involved a student in Turkey and the university administration. The student had argued that his rights were violated when he was barred from sitting for exam since he had been using headscarf in the university15. The state court in turkey held that it was the university had not violated the student’s right since in Turkey public display of religion not allowed. When the matter was brought before the ECtHR the decision by the state was held on the basis of the doctrine of margin of application. These two cases show how the doctrine allowed for flexibility but as the same time creating controversies in human rights protection. By accepting the contradicting decisions of the state courts in the two cases based on the margin of application doctrine, the ECtHR showed that the doctrine creates flexibility. The decisions clearly depicted that the doctrine itself is a barrier to the universality of human rights by promoting state autonomy and discouraging common standards in decision making16. The SAS v France shows how the margin of appreciation has been used in handling human rights issues. In this case the ECtHR found that a particular French Law which was deemed to be prohibiting the concealment of the face in public palaces or areas did not violate the European Convention on Human Rights. In this case, the Grand chamber highlighted that the law in question did not expressly target religious dressing code. The court however paid attention to the debate that had taken place on that particular law. This is the view of the grand chamber was insufficient to distinguish the law form that which had been considered restrictive in the Arsalan case. The decision however showed how at times the application of the doctrine could be complicated. Margin of Appreciation and National Sovereignty The doctrine of appreciation has ensured that the courts do not give decisions which are unnecessary and which nay have far reaching implication on human rights protection17. However, there has been a widespread concern on the influence of the doctrine in relation to national sovereignty. The move by ECtHR to resolve various cases by accepting the judgments of the states is somehow questionable since it tends to be a way of promoting national autonomy. A look at the cases that have been brought before the Strasbourg Court reveals that most of the cases on rights of religious freedoms have been from France and Turkey18. In most of these cases, the court has rejected the cases terming them to be ill founded. In doing so the court has tended to promote state sovereignty by always accepting these state decisions merely on the basis of lack of consensus and the margin of application. The French and Turkish regulations normally represent active secularism and restriction of public expression of religion19. The cases that have been brought forward to ECtHR have however been rejected on the basis of the margin of application where it has been argued that the states have the authority and powers to impose the restrictions. This has promoted national sovereignty while at the same time resulting in violation of the rights of the individuals20. Though it has been said that the cases do not contravene the Convention, the individual rights of the involved parties are normally violated. The rulings is the Dahlab v. Switzerland 21 which indicate that state’s move to embrace active secularism at the expense of the rights of the party in question shows that the margin of application has at times been used by the state to promote state agenda and to ensure that it is maintained. France has been known to be a country that promotes secularism. The cases and state rulings concerning human rights that have been brought before the ECtHR have also been accepted on the basis of the margin of application where the state has been given autonomy in regard to the human right issue in question. This was evident in the case of Kervanci v. France and Dogru v. France. It has been argued that the autonomy of the has been maintained and the state decisions accepted with regard to human rights protection due to the lack of censuses on some issues that are associated with human rights22. However, through accepting all decisions made by states on the basis of the margin of application, the doctrine moves from being a tool of enhancing flexibility and promoting human right protection to a tool of empowering the states and ensuring that they remain sovereign. In most of the cases where the decisions by state courts are accepted, it is done on the basis of the prevailing economic, social, political and cultural situations in a country23. This he says was the major reason why the doctrine of the margin of application came into play. Despite the fact the doctrine was meant to take into consideration the difference in culture, religion and politics in the various states, it has also ended up promoting sovereignty among member states. This has been done by allowing the states to make decisions related to the convention on the basis of the political, social and religious structures of the country in question. In most cases, the decisions made by the states do not violate the convention but have a detrimental impact on individual’s rights and the universality of human rights. Conclusion From the examination and analysis of the doctrine of the margin of application and its application in the European Human Rights model, it can be concluded that the doctrine gives states authority to give opinion on the various contents of requirements as well as restrictions that are related to human rights protection. Moreover this doctrine has provided an avenue for addressing European human rights issues in various cultural legal traditions. It has been used to help address the problem of lack of consensus among member states on various controversial issues such as religion and morality. By allowing the states to be able to give opinion on these matters based on the existing and prevailing circumstances in that particular country, the margin of application enhanced flexibility in the European Human Rights model. In most cases the ECtHR accepts the decisions made by the courts on the basis of the margin of application. This at times result in inconsistencies due to the lack of consensus or common standards hence tending to promote national sovereignty rather that enhancing flexibility and helping in human rights protection among member states. Despite these inconsistencies, the margin of application is a very important tool that has ensured flexibility in human right protection and helped in handling the problem of lack of consensus on sensitive issues like religion and morality. Despite the existence of controversies that result from the use of the margin of application as well as the opposition against it, this doctrine still provides is a very vital way of ensuring flexibility in the European Human Rights Model. What is required in the doctrine is some form of rationalization so that the cases that are brought before the ECtHR are not only accepted on the basis of lack of consensus. Bibliography Amos, M. 2013, ‘Transplanting Human Rights Norms: The Case of the United Kingdom’s Human Rights Act, Human Rights Quarterly, Vol. 36,pp. 386-407 Baker, A.2006, ‘The Enjoyment of Rights and Freedoms: A New Conception of the ‘Ambit’ under Article 14 ECHR’, Modern Law Review, Vol. 69, No. 5, pp. 714. Covey, C. et al. 2010, European Convention on Human Rights, OUP, London Connolly, M.2011, Discrimination Law, Sweet and Maxwell, London. Dahlab v. Switzerland Dogru v. France. Fredman, S.2011, Discrimination Law, OUP, London. Gerards, S. 2013, ‘The Discrimination Grounds of Article 14 of the European Convention on Human Rights’, Human Rights Law Review, Vol. 13, No. 1, pp. 99- 124 Gearty, C.2010, Beyond the Human Rights Act’ in The Legal Protection of Human Rights Skeptical Essays, OUP, London. Harris, D., O’Boyle, M. & Warbrick, C. 2009, The European Convention on Human Rights, OUP, London Handyside v. United Kingdom Hiebert, J. 2012, ‘Governing under the Human Rights Act: the limitations of wishful thinking’, Public Law, pp. 27-44 Human Rights Act’ (2012) 5 European Human Rights Law Review 516-527 Kervanci v. France Kang-Riou, N., Milner, J. and Nayak, S. 2012, Confronting the Human Rights Act: Contemporary Themes and Perspectives, Routledge, New York. Klug, F. 2003, ‘Judicial Deference Under the Human Rights Act 1998’ ,European Human Rights Law Review, Vol. 34, No.2, pp. 125 Mead, D. 2012, ‘Outcomes aren’t all: defending process-based review of public authority decisions under the Human Rights Act ,Public Law ,pp. 61-84 Moschel, M. 2012, ‘Is the European Court of Human Rights’ Case law on anti-Roma violence ‘beyond reasonable doubt’?, Human Rights Law Review, Vol. 12, No. 3, pp. 479-507 Moeckli, D. Shah, S. and Sivakumaran, S. 2010, International Human Rights Law, Oxford University Press, Oxford. O’Connell, L. 2012, ‘Cinderella Comes To the Ball: Art 14 and the Right to Non-Discrimination in the ECHR’, Legal Studies, pp. 211-229 Sandland, R. 2008, ‘Developing a Jurisprudence of Difference: The Protection of the Human Rights of Travelling People by the European Court of Human Rights’, Human Rights Law Review, Vol. 8, No.3, pp. 475 Smith, A. and O’Connell, R. 2011, Equality and Non-Discrimination’ in Transitional Jurisprudence and the ECHR, Cambridge University Press, Cambridge. Wintemute, K. 2004, ‘Filling the Article 14 “Gap.” Government Ratification and Judicial Control of Protocol 12 of the European Convention on Human Rights’ European Human Rights Law Review, Vol. 5, pp. 484 Wintemute, K. 2004, ‘Within the Ambit How Big is the “Gap” in Article 14 of the European Convention on Human Rights?’, European Human Rights Law Review, Vol. 4, pp. 366 Read More