European Human Rights - Essay Example

?Running Head: European Human Rights European Human Rights Insert Insert Insert 4 March European Human Rights Introduction Among the core values of the European Union are human rights, democracy, and the rule of law. The European Union understands the significance of human rights and hence it has established convention and treaties among its member states regarding human rights. In order for the European Union to attain the status of a Human rights regime, all the Members States need to apply same standards (Moral, 2006). The focus of the Union’s human rights policy is on civil, political, economic, social, and cultural rights. It also seeks to promote the rights of women and children, as well as of minorities and displaced persons. ‘Margin of appreciation’ is a doctrine that was first developed and applied in the case law of European Court and Commission of Human Rights. It is a concept developed by the European Union where different member states’ courts can interpret the Convention of Human Rights differently (Greer, 2000, p.5). The doctrine does not have universal litigation for all convention rights, since it has higher profile for some convention rights i.e. right to property; however, it has lower profile on other rights in the conventions. Moreover, there is no simple and clear method of describing how the doctrine works; further, the doctrine’s nature is that of uneven and unpredictable. Due to the nature of margin of appreciation, there is need for much structure, precision supervision and regularity in its application (Greer, 2000, p.5). The European Union formulated the margin of appreciation since its member states comprise of diverse cultural and legal traditions embraced thus, it was difficult to identify uniform European standards of human rights. Moreover, the doctrine provides the flexibility needed to avoid damaging rows between the European Court, General, and the Member States. Additionally it permits the Court to balance the autonomy of Member States with their obligations under the Convention. The purpose of this paper is to evaluate the contemporary practice of margin of appreciation in applying of Convention rights and freedoms. The paper will explore the logical flaws in the margin doctrine as currently conceived and the way they contribute in devaluing the convention. Moreover, the role of the Strasbourg Organ in the supervision of administering of the doctrine in its Member States is also discussed. Finally, an assessment of the efficiency and consistency of supervision is analyzed. Margin of appreciation The European Commission of Human Rights endorsed margin of appreciation on the grounds that the national authorities are better placed to judge than the Strasbourg institutions. This doctrine is applicable in connection with articles of the convention providing some accommodations or limitation clauses. Some of the areas where Member States have been accorded margin of appreciation by the European Union convention on human rights are protection of morals, determining the mandate of the judiciary, prevention of crime and disorder and matters pertaining to national economy and security. In determining the scope of marginal of appreciation, the courts consider firstly, the subject matter of the protected right, i.e. a narrow margin is issued if the subject matter being protected is considered fundamental. Secondly, the aim and the interest of set restriction are also considered. Therefore, the margin of appreciation is determined by the effects of a restriction on other people in the society. Moreover, there are European consensus standards, which are applicable to all Member States. In such cases, there is less need for application of margin of appreciation (Kleijkamp, 1999, p.50). However, there is concern in that uncontrolled margin of appreciation is devaluing the rights and freedoms provided by the Human Rights Convention. States that have the norm of human rights relativism can exploit this doctrine to cartel the exercise of human rights (Moral, 2006, Para.1). Critiques have argued that the use of margin of appreciation stifles the development of judge made laws through establishing non-accountability, bias, and external interference. Importantly, the doctrine is at odds with the concept of human rights universality as it emphasizes on cultural relativism. Why the European Court of Human Rights allow the use of margin of appreciation The rationales behind margin of appreciation in application of the European Union human rights convention include cultural relativism, sovereignty of member states and effective protection. Yourow notes that, margin of appreciation is used in application of human rights as it “tends towards both restrictive interpretation of Conventional rights and freedom and it inclined towards upholding state discretion” (Yourow, 1996, p.13). The laws in the Convention are conditional, hence the need for a leeway where member states can adopt the laws in manner that best suit them. The margin of appreciation is used as the Convention provides qualified rights some of which are not absolute and contain associated limitations expressed within the right. Better position rationale The court’s position is that national authorities are better placed to handle any cases compared to the Court, because the local authorities are familiar with the context of their setting than an external jury would. Moreover, when dealing with political sensitive issues, the Member States were best suited for the job. Further, various responses may not be applicable or viable to some setting in the Union. This is particularly real with the inception of new nations applying and joining the European Union. Cultural relativism The European Union is composed of over forty countries, each with diverse cultural practices. Therefore, it is impractical to have uniformity in human rights standards across the board (Greer, 2000, p.15). In spite of lack of uniformity, there are European consensus standards that are applicable to all nations in the union. The European Union provides the margin of appreciation doctrine in order to facilitate interpretation of the convention subject to the prevailing circumstances. However, opponents of this doctrine argue that all human beings are equal and they deserve same rights regardless of their status. Therefore, margin of appreciation permits individual states to resolve conflicts between individual rights and national interests, which vary depending on the Member States. The doctrine balances variation and overriding protection when necessary to protect fundamental rights. Through the doctrine the European Union is able to manage the diversity of its members, hence reduces conflicts. Moreover, the Union also seeks to have ethical decentralization through margin of appreciation. Besides, the state can be able to balance realism and diverse conditions with the universal aspect of human rights by being granted margin of appreciation doctrine. Further, the European court permits margin of appreciation since it facilitates human rights compliance with different cultural, social, and historical identities of nation states. The courts devised this approach to enable individual states to deal with issues, which do not have European consensus, i.e. how much human right an individual can have. Therefore, the fewer consensuses there are among member states on whether something counts as a human rights violation, the better placed the national authorities are to decide on the matter and the more deferential the Court has to be in its review. Additionally, the doctrine is an essential tool of interpreting personal sphere rights and social restrictions on morals. Due to absence of uniform standards of human rights across all European Union states, margin of appreciation permits individual states to determine local values and their application to particular cases. Sovereignty of Member States The union considers the fact that its Member States are sovereign and they have different legal structures despite being members of the EU. Moreover, it also recognizes the important role of national courts as best placed to judge local conditions and apply legal standards (Greer, 2000, p.15). Where the Member States have consensus regarding certain rights there is no need for margin of appreciation since the law is universally applicable to all members. Additionally, the Court can defer cases that are of political interest of a member states to national authorities as they are better placed to handle the matter. The dispensing and protection of human rights and freedoms are the duties of member states and should not be done by an external body. Effective protection The function of the Convention is to protect and ensure that human rights and freedoms are not violated in Member States without much interference of national sovereignty (Greer, 2000, p.15). The role of the court is to ensure that member States comply with the limits set in the Convention. The will of domestic majority The convention provides the principle of subsidiarity, to the Member States where individual states identify through democratic means, what rights and to what extent the rights are applicable to their context. Moreover, the domestic people in the member States are not keen with universal set of standards as they perceive their sovereignty if at risk of interference. Supervision of the margin of appreciation In the application of margin of appreciation, the Court is in charge of supervision of the amount of margin used. Moreover, margin of appreciation works in hand with supervision from the European Court. The supervision role of the Strasbourg organ is not limited to determining whether Members States adhered to their discretion reasonably but also the aim of the measure challenged and the ‘necessity’ (Greer & Council of Europe, 1999, p.16). The potential abuse of this doctrine leads to much closer supervision; further, care is taken to avoid giving wide margin that can be detrimental to the Convention rights and freedoms (Dijk, et al., 1998, p.93). The level Court supervision is influenced by nature of the Convention rights, the importance of the right and the kind of activities involved. Importantly, the Court determines whether a certain margin should be granted to member state and that if that margin is given, the width of the margin is also established. Moreover, the court has established issues and matter that wide margin is essential i.e. protection of morals. The level of supervision of margin doctrine applied to some cases is not explicit as it should be there is lack of consistency and transparency (Dijk, et al., 1998, p.93). In the Court taking up the duty of interpreting the Convention for its member states, it has managed to effectively supervise the use of margin doctrine. Since the use of margin doctrine has created a hierarchy in the human rights and freedoms, the Court does not supervise properly issues that are perceived to be of lower hierarchy. The supervision of margin of appreciation is not consistent as it is subjective to many factors. Supervision is difficult because the scope margin varies case by case hence there is no universal threshold for determining what width can be applied. There need for more standardized laws are a result of inconsistency in supervision of margin doctrine. Moreover, the Courts supervision i.e. has not been impartial since influential Member States have been accorded more leeway. For instance, some European countries have the rights to deny terrorist suspects some fundamental rights, which other members cannot. Therefore, the Strasbourg Organ has been seen as a discriminating body. How margin of appreciation devalue Convention rights and freedoms Context dependent The permitting of use of margin of appreciation in Member States of the European Union leads to devaluing of the convention rights and freedoms. Since Member States have the right to interpret the convention according to their context, the convention rights lack uniformity. The margin of appreciation accord to states is not limited; the states can violate the convention. Due to the fact that the level of margin of appreciation depends on the context, this can lead to violation of rights of citizens. Moreover, the conventions rights and freedom have become subjective, the rights are not absolute, and they contain associated limitations expressed within the right. Member States with substantial influence in the Union over other members can abuse this leeway since they can muscle greater width hence leading to violation of the Convention rights and freedoms. Conclusion Generally, margin of appreciation refers to the amount of discretion the Court gives national authorities in fulfilling their obligations under the Convention on matters without consensus. The European Commission of Human Rights endorsed margin of appreciation on the grounds that the national authorities are better placed to judge than the Strasbourg institutions. In order to control the effects of margin appreciation, the European court has established close supervision of the doctrine (Moral, 2006). The European Union Court uses the margin doctrine in administering its Convention since it provides a balance between national interest and Convention rights and freedoms. Since there is no uniformity or consensus of the human rights and freedoms the court permits the doctrine so as the Member State can remodel them according to their circumstances. Hence, the Court is able to manage the diversity of its Member States. Further, the Court recognizes that national judicial systems are the organs, which are best placed to handle local issues, as they understand their context. Subsequently the margin doctrine is used since the qualified rights in the European Convention, are not absolute and contain associated limitations expressed within the right. Moreover, the will of majority citizen in Member States is to limited interference of their national sovereignty. However, there is need for uniformity in interpretation of the Convention if the European Union is to establish human rights (Yourow, 1996, p.177). The Strasbourg Organ has accorded supervision on the use of margin doctrine to limit the chance of devaluing the Convention rights and freedom. The role of supervision organ include determining extend of the margin, the ‘necessity’ of the margin through proportionality test and assessing whether Member States adhere to discretion reasonably. Notably the Court has not been able to supervise margin doctrine since the margin led to establishment of hierarchy of rights; therefore, the Organ has ignored low hierarch issues. The efficiency of the supervision is also questionable since there is not set standard for determining amount of width given to a case. Thus, the allocation of width of margin is subjective to many issues i.e. member states with greater influence are able to manipulate this loophole to their interest. Reference List Dijk, P., Hoof, Godefridus, Heringa, A. W., 1998. Theory and practice of the European Convention on Human Rights. Hague: Martinus Nijhoff Publishers. Greer, S., 2000. The margin of appreciation: interpretation and discretion under the European Convention on Human Rights, Volume 88. Strasbourg Cedex: Council of Europe. Greer, S. & Council of Europe. 1999. The exceptions to articles 8 to 11 of the European Convention on Human Rights. Volume 88. Strasbourg Cedex: Council of Europe. Kleijkamp, G., 1999. Family life and family interests: a comparative study of the influence of the European Convention of Human Rights on Dutch family law and the influence of the United States Constitution on American family law. London: Martinus Nijhoff Publishers. Moral, I., 2006. The Increasingly Marginal Appreciation of the Margin of-Appreciation Doctrine. German Law Journal, Vol. 07, No. 06. (Online). Available from: http://www.germanlawjournal.com/pdfs/Vol07No06/PDF_Vol_07_No_06_611-624_Developments_Rasilla.pdf (Accessed March 05, 2011). Yourow, H., 1996. The margin of appreciation doctrine in the dynamics of European human rights jurisprudence. Netherlands: Martinus Nijhoff Publishers. Read More