Margin of Appreciation and National Security - Essay Example

How far can margin of appreciation go when national security is used as grounds for justifying interference with human rights? Human rights are‘The basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law” 1 “Human rights have been classified historically in terms of the notion of three “generations” of human rights. The first generation of civil and political rights includes the rights to life and liberty and the rights to freedom of speech and worship. The second generation of economic, social and cultural rights includes the right to work and the right to an education. Finally, the third generation of solidarity rights includes the collective rights to political self-determination and economic development”.2 Human rights help to protect people everywhere from political, legal and social abuses. The statements of human rights are addressed to governments, requiring compliance and enforcement on their part. Human rights deal with how people should be treated by governments and institutions. They are not moral norms applying to interpersonal conduct. According to Thomas Pogge, "to engage human rights, conduct must be in some sense official"3. Human rights apply to all countries and all people. The duties and responsibilities of ensuring human rights to a citizen are bestowed on the government of the country in which the person is located. “The international community is characterized by diversity, which is the cause for much controversy in the international human rights system since it stresses the universality of human rights.”4,5 In such a situation, the European Court for Human Rights (ECtHR or Court) enunciated a doctrine that allowed States a certain extent of latitude in the exercise of human rights according to the prevailing situation.6 This is known as the doctrine of margin of appreciation, different from the discretion allowed by the European Convention on Protection of Human Rights (ECHR or Convention) to member states in implementing human rights in internal laws.7 The Court places reliance on the doctrine of margin of appreciation to evaluate states’ extent of interference in human rights, particularly in situations where the rights are in conflict with the needs of the community. In the European context, the doctrine has assumed much greater importance in accommodating the prevailing diversity by deciding on common perceptions applicable to all, and allowing for diversity based on cultural and other factors. The doctrine is observed to have many similarities with the rational basis test used in the American context.8 The doctrine evolved from case law and was not a part of the text of the Convention. In 1958, the UK invoked article 15 of the Convention in a case brought by Greece. The article permitted states to “derogate” from the provisions of the Convention when the life of a nation is under threat. H Condé defines derogation as: “The act of a state suspending the application and enjoyment of certain human rights upon its declaration of a state of public emergency affecting the life of a whole nation. Derogation allows the state to take measures to deal with the emergency without fear of violating human rights norms during the derogation period.” 9 Art 15 of the Convention provides: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation provided that such measures are not inconsistent with its other obligations under international law.” The European Commission on Human Rights made a recommendation to the Court that: “The government should be able to exercise a certain measure of discretion in assessing the extent strictly required by the exigencies of the situation”.10 The exact terminology found expression for the first time ever when the Commission made a report in another case concerning the question of whether there was an emergency situation in Ireland justifying the suspension of some of the provisions of the Convention. The Commission reported that “…having regard to the high responsibility that a government bears to its people to protect them against any threat to the life of the nation; it is evident that a certain discretion - a certain margin of appreciation - must be left to the government.”11 The Commission’s role was that of examining whether the decisions of the state were compatible with that of the Convention, after permitting some latitude to the government of the state. The margin of appreciation has more to do with who decides, rather than what the decision is. These issues project another interesting aspect of the question of “State interference with human rights”, a euphemism for states not respecting the law, which is seen differently in legal terms from the act of non-respect by an individual. A State does not commit an offence – it only “derogates” from the law. Subject to certain restraints, Article 15 of the Convention allows states to derogate from the stipulated human rights during war or when there is a threat to the life of the nation. Rights such as protection from torture, inhuman treatment, slavery, servitude etc are outside the purview of derogations. Under similar circumstances, the United Nations Treaty on Civil and Political Rights also permits derogations.12 The extent of margin of appreciation allowed by courts depends not only on the nature of legitimate aim, but also on the type of interference with human rights. In reported instance of secret surveillance of an individual by the state in Sweden, a balance was sought between the interests of protecting national security against the seriousness of an individual’s right to privacy by invoking a standard of “pressing social need” as apart of the test of necessity for such interference. Though the issue of secret surveillance was recognised as a serious danger to human rights particularly if abused, the court was satisfied that adequate safeguards existed in the Swedish system in the form of several levels of appeal and supervision. In general, courts have been all too ready to allow a wide margin of appreciation when grounds of national security are invoked, despite the inherent dangers of interference in human rights.13 Variation in the margin of appreciation Several criteria determine the width of the margin of appreciation. When states are in agreement on an issue, the margin is little, but when there is no agreement or consensus, the margin of appreciation is usually much wider.14 Hence, it can be said that the width of the margin of appreciation is not absolute and varies according to the degree of consensus among states. Thus, the margin of appreciation is not an unfettered license to act as it pleases the state and as consensus emerges, the margin narrows.15 The Court also gives a different measure of width according to the nature of rights interfered with. Property rights enjoy wider margins of appreciation, while rights associated with freedom of expression attract narrower margins. When the issue is one of national security, the margins are usually much wider.16 As per case law, margin of appreciation can be applied only if three standards are met. The first specifies that domestic law should prescribe a conflict with Convention rights, the second that such interference must be due to a legitimate aim and finally that it must be necessary in a democratic society.17 The margin of appreciation is available only if domestic law provides for Convention rights. Where domestic law does not provide for a right, no margin will be available. Grounds of National security National security and the prevention of serious crimes have always been considered very strong and legitimate aims attracting a wide margin of appreciation in matters under the consideration of ECtHR. In fact, when governments are questioned on human rights interferences, they usually present the national security argument.18 In order to assess the relative extent of margins of appreciation allowed by the Court, three rights, namely the right to privacy, freedom of expression and public emergency are discussed below. 1. The right to privacy When the ground for derogation is national security, the Court usually allows a wide margin of appreciation concerning restrictions on the right to privacy. The Court has stated, “Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and terrorism, with the result that the state must be able, in order to effectively counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction”.19 The Court has held that German legislation granting powers of secret surveillance over mail, post and telecommunications under exceptional conditions are necessary to prevent threats to national security and to prevent crime.20 Though there is a need to combat terrorism in the present scenario, the danger of overreaction cannot also be ruled out. 2. Freedom of expression In the matter of freedom of expression too, the Court has taken a liberal view of the margin of appreciation when the grounds for interference were based on threats to national security. The Court upheld the conviction of a Greek officer who disclosed some information on design and production of guided missiles to a private company, leaving the discretion to the national government.21 3. Emergency situations The Court has consistently deferred to national authorities in the matter of deciding on the existence of a state of emergency and also the methods necessary to overcome the situation. The interpretation of margin of appreciation is most liberal and utmost altitude is given to national governments to interfere with human rights in such situations.22 Contrast this with the fact that the margin of appreciation is narrowest when violation of privacy is alleged, probably due to the reason that there is broad consensus among states in this respect. States’ attitudes towards the doctrine of margin of appreciation States are quick to claim a wide margin of appreciation whenever they are compelled to undertake any obligations in the international arena, since such obligations are considered a surrender of sovereignty. The usual argument tendered is that they are better placed to assess local situations and sensitivities and outside interference or even evaluations will be insensitive to the cultural diversities and peculiarities. States are also alert to claim competence to interfere with human rights in situations where the Charter mentions phrases such as ‘in accordance with the law’, ‘subject to the law’, ‘provided by the law’, or ‘within the law’, which is interpreted to mean domestic law, rather than any compliance to international laws and norms. If domestic laws can justify interference, it is often considered sufficient. Further, in most situations where governments face genuine, self made or fake threats, they are quick to declare national emergencies, which allow them to utilize the widest margins of appreciation when called to account in international forums. While there can be no arguments about national priorities during emergencies, the increasing use of this pretext by countries with little or no democratic structures has made the application of the margin of appreciation suspect. Such a situation does not however rise in the European context where democratic traditions are strong and well established. However, extension of the doctrine to other parts of the world has encountered hurdles due to this reason. The margin of appreciation must necessarily be applied even on grounds of national security only after rigorous investigation of claims, since it is seen by critics as a route to perpetuation of human rights abuses. Read More