Published online by Cambridge University Press: 17 January 2008
The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2 dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3 This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.
1 Elements of this article were delivered as a paper at the McCoubrey Centre for International Law, University of Hull, in November 2003. The research presented is derived from doctoral work completed at the University of Hull under the supervision of Dr W John Hopkins, Dr Lindsay Moir and the late Prof Hilaire McCoubrey; Sweeney, , ‘Margins of appreciation, cultural relativity and the European Court of Human Rights’ (PhD thesis on file at the University of Hull). Thanks also to Prof Ian Ward at Newcastle Law School who read and commented upon an earlier draft of this article.Google Scholar
2 ‘The Council of Europe's Member States’ (Council of Europe) <www.coe.int/T/e/com/about_coe/member_states/default.asp> (last visited 14 10 2004). The most recent state to join was Monaco on the 5 October 2004.+(last+visited+14+10+2004).+The+most+recent+state+to+join+was+Monaco+on+the+5+October+2004.>Google Scholar
3 Monaco signed the ECHR and its protocols on the 5 October when it joined the Council, but it has yet to ratify them.Google Scholar
4 Walzer, MThick and Thin: Moral argument at home and abroad (University of Notre Dame Press Notre Dame 1994).Google Scholar
5 For an introduction to this justification for human rights, and to alternative justifications, see Shestack, J, ‘The philosophical foundations of human rights’ in Symonides, (ed) Human Rights: Concepts and Standards (Ashgate/Dartmouth Aldershot 2000).Google Scholar
6 A An-Na'im ‘Human Rights in the Muslim World’ 3 Harvard Human Rights Journal (1990) 13. This perspective informs An-Na'im's efforts to demonstrate that human rights values are in fact not alien to Islam.Google Scholar
7 This type of relativism is what Teson has referred to as ‘metaethical relativism’ (Teson, F ‘International Human Rights and Cultural Relativism’ 25 Virginia Journal of International Law (1985) 869, 886Google Scholar). Note however that Alison Renteln has argued that the premise of this type of relativism (labelled by her as ‘ethical relativism as descriptive (factual) hypothesis’) does not actually imply tolerance (Renteln, AInternational Human Rights—Universalism Versus Relativism (Sage Publications New York 1990).Google Scholar
8 Teson (n 7) 888.Google Scholar
9 By relativism, Renteln was referring to the particular strand she described as ‘ethical relativism as prescriptive (value) hypothesis’.Google Scholar
10 Renteln (n 7) 72.Google Scholar
11 Hatch, ECulture and Morality (Columbia University Press New York 1983) 67.Google Scholar
12 Ibid.
13 Tilley, J ‘Cultural Relativism’ (2000) 22 Human Rights Quarterly 501 contains a more intensive critique of cultural relativism.CrossRefGoogle Scholar
14 Donnelly, Universal Human Rights in Theory and Practice (New YorkCornell University Press 1989) 119;Google ScholarHiggins, Problems and Processes in International Law (OUP Oxford 1994) 96.Google Scholar
15 The USSR for example historically treated human rights as an aspect of their 'domestic jurisdiction' (Art 2(7) Charter of the UN) and vigorously promoted a policy on non-interference. On the first steps towards Russia's modification of this attitude see Schweisfurth, T ‘The Acceptance by the Soviet Union of the Compulsory Jurisdiction of the ICJ for Six Human Rights Conventions’ (1991) 2 European Journal of International Law 110.CrossRefGoogle Scholar
16 As required by Art 1 ECHR.Google Scholar
17 Handyside v UK Series A No 24 (1979–1980) 1 EHRR 737.Google Scholar
18 Ibid para 48.
19 Lester, A ‘Universality versus subsidiarity: a reply’ 1 European Human Rights Law Review (1998) 73, 76.Google Scholar
20 Benvenisti, E ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 31 New York University Journal of International Law 843, 844.Google Scholar
21 Z v Finland Reports 1997-I (1998) 25 EHRR 371, Partly dissenting Opinion of Judge De Meyer, Part III. Judge De Meyer made similar comments in the footnote to his separate concurring opinion in Ahmed & Others v UK Reports 1998-VI (2000) 29 EHRR 1.Google Scholar
22 Mahoney, P ‘Speculating on the future of the reformed European Court of Human Rights’ (1999) 20 Human Rights Law Journal 1, 3.Google Scholar
23 Lester, (n 19) 74.Google Scholar
24 The doctoral research from which this paper has developed examined all the cases concerning the new Contracting Parties from central and eastern Europe. Finland was excluded from the survey because its recent history rendered it more comparable with its western and northern European neighbours rather than the rest of the former Eastern bloc. Turkey was excluded because its situation is unique and not so directly concerned with the collapse of communism. See Sweeney (n 1).Google Scholar
25 McBride, J ‘Judges, politicians and the limits to critical comment’ (1998) 23 Supp (Human Rights) ELR 76.Google Scholar
26 Tammer v Estonia (No 2) Reports of Judgments and Decisions 2001–I (2003) 37 EHRR 43.Google Scholar
27 Ibid para 22. The case report contains the following footnote: ‘The translation of the Estonian words ‘abielulõhkuja’ and ‘rongaema’ is descriptive since no one-word equivalent exists in English.’
28 Ibid para 33.
29 Ibid para 38.
30 Ibid para 40.
31 Ibid paras 52–3.
32 Ibid para 67.
33 Ibid para 69.
34 Janowski v Poland Reports of Judgments and Decisions 1999–I (2000) 29 EHRR 705.Google Scholar
35 The terms used were ‘glupki’ and ‘ćwoki’ respectively.Google Scholar
36 The applicant had also alleged violations of Arts 3, 6 and 7(1), but the European Commission declared those complaints inadmissible.Google Scholar
37 Janowski v Poland (n 34) paras 22–3.Google Scholar
38 Ibid para 24.
39 Ibid paras 25–6. The government also contended that their aim was to protect the ‘reputation and rights of others’, namely the municipal guards. Having examined the facts of the case and the reasoning of the domestic courts, the European Court felt the aim of preventing disorder was the dominant aim.
40 Ibid para 27.
41 It must be noted that the Commission was split 8/7 in favour a finding a violation of the Convention. There was therefore a significant minority of Commissioners that felt the boundaries of the state's margin had not been overstepped in this case: Janowski v Poland (Application 25716/94) (1997) (ECommHR).Google Scholar
42 Janowski (n 34) para 32.Google Scholar
43 Ibid.
44 Ibid para 35.
45 Janowski (n 34) para 34.Google Scholar
46 Carozza, Cf G ‘Subsidiarity as a structural principle of international human rights law’ 97 AJIL (2003) 38.Google Scholar
47 Lawless v Ireland (no 3) Series A No 3 (1979–1980) 1 EHRR 15.Google Scholar
48 Neumeister v Austria Series A No 8 (1979–1980) 1 EHRR 91.Google Scholar
49 Nevertheless Neumeister was only the third case that the Court had examined on its merits. The second, De Becker v Belgium Series A No 4 (1979–1980) 1 EHRR 43, was struck off the list because the impugned law was altered by the time that the Court heard the case.Google Scholar
50 Janis, M, Kay, R, and Bradley, AEuropean Human Rights Law (OUP Oxford 2000) 25.Google Scholar
51 Arai-Takahashi, YThe Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia Oxford 2002) 232 recognizes this, but argues that as a ‘transitional’ doctrine alone contemporary use of the margin cannot adequately be defended.Google Scholar
52 Yourow, HThe Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Kluwer The Hague 1996).Google Scholar
53 Lukanov v Bulgaria Reports of Judgments and Decisions 1997–II (1997) 24 EHRR 121.Google Scholar
54 ‘Survey of activities 2003’ (Council of Europe) <www.echr.coe.int/Eng/EDocs/2003SURVEYCOURT.pdf> (15 Oct 2004), 32 gives a snapshot of the Court's activities. This pattern is in line with Court's approach to the other Contracting Parties; once a complaint has been declared admissible it is often decided in favour of the applicant. In 2003 a violation of at least one Convention article was found in 521 out of the 548 cases that gave rise to a finding on the merits.+(15+Oct+2004),+32+gives+a+snapshot+of+the+Court's+activities.+This+pattern+is+in+line+with+Court's+approach+to+the+other+Contracting+Parties;+once+a+complaint+has+been+declared+admissible+it+is+often+decided+in+favour+of+the+applicant.+In+2003+a+violation+of+at+least+one+Convention+article+was+found+in+521+out+of+the+548+cases+that+gave+rise+to+a+finding+on+the+merits.>Google Scholar
55 Janowski v Poland (n 34); Rekvényi v Hungary Reports of Judgments and Decisions 1999–III (2000) 30 EHRR 519; Matter v Slovakia Application 31434/96 (2001) 31 EHRR 32; Dalban v Romania Reports of Judgments and Decisions 1999–VI (2001) 31 EHRR 39.Google Scholar
56 In chronological order: Janowski v Poland (n 34); Rekvényi v Hungary (n 55); Matter v Slovakia (n 55); Constantinescu v Romania Reports of Judgments and Decisions 2000–VIII (2001) 33 EHRR 33; Tammer v Estonia (No 2) (n 23); Gorzelik v Poland Application No 44158/98 (2004) 38 EHRR 4 (NB This decision has been reaffirmed by a Grand Chamber, see Gorzelik v Poland Application No 44158/98 Judgment of the Court 17 Feb 2004); Lesnik v Slovakia Application No 35640/97; 4 similar cases against Ukraine decided on 29 Apr 2003: Nazarenko Application No 39483/98, Dankevich (2004) 38 EHRR 25, Aliev, Application No. 41220/98, Khokhlich Application No 41707/98; Blecic v Croatia Application No 59532/00; Kopecky v Slovakia Application No 44912/98Google Scholar
57 The four cases brought against Ukraine and decided on 29 Apr 2003 (n 56) also disclosed several violations of the Convention, even though some of the complaints under Art 8 were dismissed using margin of appreciation analysis.Google Scholar
58 Davidson, JS ‘Human Rights, Universality and Cultural Relativity: In Search of a Middle Way’ 6 Human Rights Law and Practice (2001) 97.Google Scholar
59 Vienna Declaration and Programme of Action, UN DOC. A/CONF. 157/23 (12 July 1993); (1993) HRLJ 352, para 5.Google Scholar
60 Freeman, M ‘Human rights and real cultures‘ 1 Netherlands Quarterly of Human Rights (1998) 25, 25.CrossRefGoogle Scholar
61 Walzer, (n 4).Google Scholar
62 This element of Walzer's work is not unique, though his interpretation of it is. See, eg, Geertz, CThe Interpretation of Cultures (Basic Books New York 1972) ch 1, ‘Thick Description: Toward an interpretive theory of culture’.Google Scholar
63 Walzer, (n 4) 3.Google Scholar
64 So called because it took place peacefully.Google Scholar
65 Walzer, (n 4) 4.Google Scholar
66 Ibid 6.
67 Ibid 4.
68 Walzer also notes that even an agreed minimal morality will often be forced into the idiom of a maximal morality (Walzer (n 4) 9), which may explain why some cultures find the objective of human rights familiar but their expression as ‘rights‘ alien.Google Scholar
69 The extent to which Walzer's work, his earlier writing in particular, is or is not relativist is moot; Walzer, MSpheres of Justice: A Defence of Pluralism and Equality (Basic Books New York 1983).Google Scholar The position taken in this article is that Thick and Thin adds a universalist dimension to Walzer's idea of ‘Spheres of Justice’; cf Bellamy, R ‘Justice in the community: Walzer on pluralism, equality and democracy’ in Boucher, D and Kelly, P (eds) Social Justice: From Hume to Walzer (Routledge London 1998).Google Scholar
70 Handyside (n17) para 48; Z and Others v UK Reports of Judgment and Decisions 2001-V (2002) 34 EHRR 3, para 103; Subsidiarity is more commonly associated with law of the European Union (Art 5 EC Treaty; Art 1 Treaty on European Union). Further discussion of the EU context of subsidiarity is outside the scope of the present paper, but is discussed in my paper ‘Universal values in an expanded EU: re-assessing the case-law on derogations from the four freedoms’ delivered at the Socio-Legal Studies Conference in Glasgow, April 2004 (copy with author).Google Scholar
71 Mahoney, Cf P ‘Marvellous richness of diversity or invidious cultural relativism‘ (1998) 19(1) Human Rights Law Journal 1 who describes the margin itself in these terms.Google Scholar
72 Brems, E ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ (1996) 56 Zeitschrift fur Auslandisches offenthiches recht und volkerrecht 240, 293.Google Scholar
73 Carozza (n 46) 63Google Scholar
74 Edwards v UK Series A No 247 (1993) 15 EHRR 417, para 34;Google ScholarMacdonald, R, Matscher, F, and Petzold, H (eds) The European System for the Protection of Human Rights (Dordrecht Martinus Nijhof 1993), 50.Google Scholar
75 Mahoney (n 71) 2–3.Google Scholar
76 ibid 4.
77 ibid.
78 ie by supplying reasons that were both ‘relevant and sufficient’; See Olsson v Sweden (no 1) Series A No 130 (1989) 11 EHRR 259 para 68; Lingens v Austria Series A No 103 (1986) 8 EHRR 103 para 40.Google Scholar
79 eg in Open Door and Dublin Well-Woman v Ireland the Court found a violation of Art 10 and stated that it ‘cannot agree [with the respondent state] that the State's discretion in the field of the protection of morals is unfettered and unreviewable….’ This is significant because on questions of morals the margin conceded is usually relatively wide; Open Door and Dublin Well Woman v Ireland Series A No 246-A (1993) 15 EHRR 244, para 68.Google Scholar
80 Arai-Takahashi (n 51) 190–205.Google Scholar