by Bill Sundhu
The emergence of international human rights extended beyond peace and security to establish “ a common standard of achievement for all peoples and all nations.”1 Inequality, discrimination and violations maybe social, cultural, economic or religious problems – they are also a legal problem. Complainants are entitled by various international human rights instruments to have claims of violations heard. Often, the most important factor in the outcome of rights determination are the values which underlie the adjudication. Are there commonly accepted universal values and standards
or are they variable to local conditions and different cultures?
An-Na’im has written,
“There is nothing that is culturally neutral. The way we think, the way we walk, the way we dress, the way we see the world, the way we see each other, the way we deal with the environment, whatever we do is culturally rooted. But we can’t even see it as culturally rooted because our culture is the eye by which we see the world and it is the heart by which we feel things or the mind by which we think. So it is integral to our very being…in that sense, universalist projects are very problematic.”2
The universalist position is if “all human beings are equal, then the rights that they hold as a result of being human are the same regardless of the culture into which the individual happens to be born.”3 The tension between universalism and cultural relativism in the interpretation of human rights poses challenges for arbiters of those rights. The European Court on Human Rights (ECHR) has had to address the tension to include former communist states with vastly different legal and historical backgrounds. The ECHR has applied the “margin of appreciation” doctrine in overseeing the exercise of discretion by states in restricting human rights in given circumstances.
The doctrine, itself, was referred to in 1976 in Handyside4, involving a limitation of freedom of expression, the Court stated:
It is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals…varies from time to time and from place to place…Consequently, Article 10 para. 2, leaves to the Contracting States a margin of appreciation…The machinery of protection established by the Convention is subsidiary to the national systems of safeguarding human rights.
Article 1 placed primary responsibility for securing human rights on the national authorities. It grants latitude to individual states in construal of rights and the common good in resolving conflicts between individual rights and national interests.
It also recognizes the important role of national courts as best placed to judge local conditions and apply legal standards. The doctrine has evolved “into one of the ECtHR’s primary tools for accommodating diversity within Europe, national sovereignty, and the will of domestic majorities, while still effectively enforcing the rights elucidated within the ECHR.”5 The notion of sovereignty, consent and law of treaties is important in understanding the central role of the state. The Vienna Declaration and Programme of Action (1993) summarizes it:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.6
While the obligation of human rights is placed on the state, the means and implementation are left to national legislatures and courts, in part because they are best placed to understand and apply rights given local history, cultures and environments. Proponents contend the legitimacy of human rights advancement is better served by this approach. This involves an element of “proportionality” with the state perhaps restricting or narrowly defining certain rights, but not beyond a certain point in which international bodies may supervise and review national courts and protect core or essential rights. Sweeney describes it as:
…whilst maintaining ‘universal’ human rights, there may be some defensible local qualifications… [requires] an understanding of the multitude of actors in society, each with their different interests and values…the social and political institutions of particular societies must deal with much of the actual protection of human rights.… in becoming embedded in society some local particularities affect the substantiation of human rights and result in specific qualifications.7
This deference to a state’s margin is “subsidiarity” and contains an element of “ethical decentralization.”8 It emphasizes the ability to review alleged violations and decisions of national courts in order to protect the essence of human rights with local variations. The justification for granting the state some latitude is to balance realism and diverse conditions with the universal aspect of human rights. Proportionality operates within the review capabilities of the international court.
In Tammer v. Estonia9 and Janowski v. Poland10, involving freedom of expression, the ECHR upheld national convictions. It was deferential to local interpretations of contested words used. Context and connotation were factors in the assessment. These cases granted a margin of appreciation to understand local concerns, compatible with universality. The rationale is flexibility in adopting appropriate measures in furthering the object and purpose of human rights whilst ensuring measures are not contrary to the Convention. The jurisprudence suggests concerns of “aiding the New Contracting parties in their transition to full participation”11 by granting them inordinate leeway appear exaggerated. In Frette v. France12 the court determined France pursued a legitimate aim in prohibiting homosexual adoption. The margin is not solely reserved to accommodate new entrants.
Proponents of the doctrine emphasize the precondition of democracy and good faith in any limitation of a right in the general or public interest. Mahoney writes:
It is only in this [good faith] context, once the first degree of protection [against naked, bad faith abuse of power] has been assured, that the doctrine of the margin of appreciation comes into play, that is to say, only if the preliminary conditions of normal democratic governance have been shown to exist.13
For example, with the “right to freedom of thought, conscience and religion” in Article 9 of the Convention, “the limitations generally allow for derogation of the enumerated right … ‘in accordance with the law’… and ‘necessary in a democratic society,…the term ‘necessary’ implies a proportionality test; the interference must be proportionate to the legitimate aim pursued.”14
In Dudgeon v. UK15 involving anti-sodomy laws in Ireland, the ECHR decided the law violated the Convention by a “consensus” within European society that sodomy laws were a serious violation of privacy while doing little to protect morals. The consensus overrode any margin of appreciation within Irish society and was not sufficiently “necessary in a democratic society” to warrant a derogation from Article 8 to treat homosexual practices as criminal.
Where there is less consensus, the deference available under the doctrine is increased. In two cases, involving the banning of headscarves in public institutions in Turkey and Switzerland, the ECHR upheld the national laws. The Court applied the margin in finding governments had legitimate aims in “maintenance of public order,” “the rights and freedoms of others” or as “necessary in a democratic society.” In Sahin v. Turkey,16 the government argued freedom of religion was subject to limitation based on necessity to preserve its secularism.
In Dahlab v. Switzerland17, the ECHR referred to right of state school students to be taught in “denominational neutrality.” Noting an absence of consensus within Europe, it found Swiss authorities had a reasonable margin of appreciation because it was difficult to ascertain what effect Dahlab’s covering had on school children. For Switzerland, preserving a secular state within its education system for the purposes of preventing religious conflict was deemed within the margin. For Turkey it was the very existence of the secular state within the context of a challenge within the Islamic world. The usage of the doctrine is a “valuable tool for incorporating societal differences within the ECHR human rights regime.”18
A significant critique of the margin of appreciation is that it compromises universal aspirations and poses risks to minorities. Benvenisti19 argues,
No margin is called for when the political rights of members of minority groups are curtailed through, for example, restrictions on speech or on association…Acquiescing…assists the majorities in burdening politically powerless minorities.
- Stifling development of judge-made law – as adjudication helps to elucidate legal norms – fostering a habit of non-accountability;
- Fear of bias – the expertise gap between national and international courts is overshadowed by deference to law-application by states;
- Problem of externalities – who should bear the costs of normative ambiguity – the acting state or those adversely affected by its actions, other states or individuals;
- Jus cogens – the non-derogable nature of these norms and the fundamental nature of the values and interests they protect militate against diluting their content.
Shany, himself, contends an “incremental methodology” in the ECHR practice of gradually narrowing down the scope of the margin; that all institutions including international courts have “inherent biases” which can be addressed by narrowing the margin of discretion in areas more vulnerable to political abuse; costing is always problematic and represents a political stance; and the premise that “jus cogens norms have fixed contents capable of mechanical application seems inaccurate…use of force or right of self-determination are among less certain norms…at the same time finding a state in violation of jus cogens norms are particularly grave…some international courts provide states with wider margins of discretion in security-related matters…a sweeping abrogation of the doctrine seems unwarranted.”22
Other criticisms include describing it as a liberal reservations system, a conservative tool to restrict human rights, as undermining the credibility of human rights and institutions and reducing the impetus for states to strictly observe and implement human rights obligations.
At a basic level, the doctrine is simply an interpretive tool. All mature legal systems necessarily devise tools and doctrines for interpretation and determination of competing interests in balancing individual rights with the will of the majority. The name ascribed to such doctrines may vary but it hardly seems an overwhelmingly radical legal invention. Just as the law or constitutions, written or unwritten, are often described as a “living tree”, the doctrine is a vital and common sense tool in which complex questions, histories and rights are sought to be clarified and adjudicated. If rights were so absolute and objective, scientists and technocrats might determine them and not jurists. For it is jurists to whom we assign tough, complex questions.
The Supreme Court of Canada, in dealing with a complaint of apprehension of bias against a black judge who stated police officers had been known to engage in racial profiling, recognized social context as an indispensable requirement for judging in a multicultural society.23 The majority wrote:
Judges must be particularly sensitive of… race, religion, nationality and ethnic origin…the reasonable person should be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgment of the prevalence of racism or gender bias in a particular community…an understanding of context or background [is] essential…a reasonable person approaches the question…with a complex and contextualized understanding.
Canadian judges are now required to apply social context; it is a tool. Similarly, the margin of appreciation doctrine is a useful tool in accommodating diversity and deferring when reasonable to do so to national courts which are better placed to understand local and societal context. It is an aid to the court in determining “whether a universal (or European) core right is actually being threatened…Core universal rights are preserved and clearly delineated in large part due to the application of the margin of appreciation.”24 It might be said there is little international consensus on but a few core rights – such as prohibition of torture, genocide and slavery. In this context, the margin is a practical device since knowledge of a national public interest requires detailed and nuanced knowledge of the domestic situation. The doctrine balances variation and overriding protection when necessary to protect fundamental rights.
It permits “normative guidance” and “compliance pull” – without, one size fits all. At best, it accommodates the diversity of cultural and historical experience. At worst, permissiveness or acquiescence in rights violations. The European trans-national experiment is very recent and flexibility, is not only necessary, but also pragmatism in applying universal principles to widely varying and evolving circumstances. It won’t be long – if not already, operating under a different name – in the jurisprudence of other international human rights bodies. It is nothing more than flexibility confronting its rival – rigidity.
2. Abdullahi Ahmed An-Na’im, “Problems of Universal Cultural Legitimacy for Human Rights,” in Human Rights in Africa: Cross-Cultural Perspectives, edited by Abdullahi Ahmed An-Na’im and Francis M. Deng (Washington, D.C.: the Brookings Institution, 1990), pp. 331-367.
5. Aaron A. Ostrovsky, What’s So Funny About Peace, Love and Understanding? How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, 2005, Hanse Law Review, Vol. 1. No. 1, p. 48.