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The margin of appreciation doctrine of the European court of human rights: Accommodating diversity within Europe
... Nispeten homojen üyelerden oluşan Avrupa İnsan Hakları Sözleşmesi bile, Avrupa İnsan Hakları Mahkemesi'nin (AİHM) içtihatlarında, üyelerinin farklı sosyopolitik ve kültürel geçmişlerini barındıracak şekilde esnek olarak yorumlanmıştır (Hannum, 2016). Bu bağlamda, çok sayıda akademik çalışma (Brauch, 2004;Brems, 2003;Gerards, 2011;Gross ve Aolain, 2001;Hutchinson, 1999;Kratochvíl, 2011) AİHM tarafından devletlere uygulanan takdir marjı doktrini gibi belirli bölgesel insan hakları rejimlerini analiz etmekte ve AİHM'nin üyelerinin farklı sosyopolitik ve kültürel geçmişlerini gözettiğini göstermektedir. ...
... Whenever such a conflict emerges and there is no European consensus on the matter, the European Court of Human Rights declines to resolve the issue and allows states a margin of appreciation in reconciling the conflicting rights. 21 Hence, as the Court pointed out, the Belgian legislator was at liberty to solve this conflict by de-criminalising euthanasia on individuals-including minorswho wanted to avoid an undignified death. ...
In 2014, the Belgian Euthanasia Law was amended so as to extend the possibility of obtaining euthanasia to minors who have the capacity for discernment. The amendment led to considerable debate among Belgian legal experts, health care professionals and ethicists, in large part due to concerns about the scope and assessment of the minor's 'capacity for discernment', a concept first introduced in Belgian medical law by the amendment. This article offers a critical legal analysis of the concept of 'capacity for discernment' and its implications for euthanasia practice in Belgium. We do so by focusing on a ruling of the Belgian Constitutional Court of 29 October 2015, where the concept figured prominently in the examination of the constitutionality of the amendment. This approach also allows us to shed light on the interpretation of several core aspects of the original 2002 Euthanasia Law and its 2014 amendment.
... Furthermore, the European Court of Human Rights' use of the doctrine of the 'margin of appreciation' is another form of concession away from pure rights considerations (Brems 2003;Arai-Takahashi 2002;Yourow 1996). This doctrine allows that in certain cases international human rights law (the ECHR) is not above domestic law, but rather domestic courts are better placed to decide on the matter. ...
Book description: The concept of 'human rights' as a universal goal is at the centre of the international stage. It is now a key part in discourse, treaties and in domestic jurisdictions. However, as this study shows, the debate around this development is actually about human rights law.
This text scrutinizes the extent to which legalization shapes the human rights ideal, and surveys its ethical, political and practical repercussions. How does the law influence what we think about rights? What more is there to such rights than their legal protection? These expert contributors approach these questions from a range of perspectives: political theory/moral theory, anthropology, sociology, international law, international politics and political science, to deliver a diversity of methodologies.
This book is essential reading for those wishing to develop a clear understanding of the relationship between human rights ideals and laws and for those working toward the fostering of a genuine human rights culture.
This paper provides a queer critique of the European Court of Human Rights’ use of ‘European consensus’ as a method of interpretation in cases concerning sexuality rights. It argues that by routinely invoking the notion of ‘consensus’ in such cases, the Court (re)produces discourses and incites performances of sexuality and Europeanness that emphasise sameness and agreement, while simultaneously suppressing expressions of difference and dissent. As a result, this paper contends that the Court’s use of European consensus has ultimately functioned to uphold and sustain the heteronormative order that underpins both the European Convention on Human Rights (ECHR) and European society more generally. This is so, despite the role that European consensus has played in the Court’s recognition of ‘new’ rights for lesbian, gay and bisexual people under the ECHR. Drawing on insights from queer theory, as well as the work of Rancière and Foucault, this discussion is carried out through a close reading of Strasbourg cases relating to sexuality.
The previous chapter offered a detailed overview of how important it is for the two overlapping legal orders, the EU and the CoE and their respective Courts, not just to co-exist, but to interact with the view of achieving harmony and consistency in their approaches. Such consistency is paving the way for further integration. We have adopted the dialogic constitutionalism doctrine as a facilitator towards a new judicial harmony in Europe in the area of human rights protection. The discussion in the present chapter focuses more to the pursuit of harmony and consistency of the two Courts’ techniques for balancing uniformity and diversity.
A religião e a moral são domínios recalcitrantes aos processos de internacionalização do direito. No presente trabalho, estuda-se a influência desses temas no caso da interrupção da gravidez do feto anencéfalo, a partir do estudo de casos nos Estados Unidos, Argentina e Brasil e da análise do ordenamento jurídico holandês para verificar essa tensão e mostrar possíveis soluções ao problema.
In this Chapter 6, the issue of applicable law is reviewed. It is demonstrated that the possibility to invoke one of the rights guaranteed in the ECHR against the foreign applicable law violating the ECHR is the most important issue for the impact of the ECHR on the issue of applicable law. It has been established that it is generally accepted that the application of a foreign law interfering with one of the rights guaranteed in the ECHR by a national court of one of the Contracting Parties may lead to a violation of the ECHR by the respondent Contracting Party. Nevertheless, the Court has never actually found a violation of the ECHR on this basis and has only dealt with a small number of admissibility decisions on this issue. Therefore, important questions on this topic remain unanswered by the Court. One of the questions that remain open is what the standard of control should be with regard to a foreign law applicable to a case that possibly violates one of the rights guaranteed in the ECHR. This question is elaborated in this chapter. Another important issue discussed in this chapter is the manner in which the rights guaranteed in the ECHR are invoked, and the use of the public policy exception, by the national courts of the Contracting Parties. Whether one of the rights guaranteed in the ECHR can also be invoked against the lex fori, and whether the ECHR could thus also purport to favor the application of a foreign law over the lex fori, is also examined in this chapter. Finally, the act of applying foreign law by the national courts of the Contracting Parties is discussed and, in particular, whether the ECHR has an impact on issues relating to the identification of the content of the applicable foreign law.
Introduction Just as it is, by definition and necessity, a matter of belief, religious freedom can be a matter of symbols, observance and rituals. Accordingly, the European Convention on Human Rights guarantees the right to manifest one’s religion or beliefs in practice and observance, subject to the normal requirements of public safety, the protection of public order, health or morals, or the protection of the rights and freedoms of others. International human rights law now accepts that such customs as ‘the wearing of distinctive clothing or headcoverings’ are protected by freedom of religion. However, in recent years, a growing number of European and other Western countries have restricted the wearing of religious clothing in the public sphere. The notion of a public sphere is inherently vague: some bans on religious clothing apply only within specific institutions, such as public schools; others extend beyond, to what people may wear on the street. The justifications invoked in support of such measures are equally varied: it is not always clear whether such restrictions respond to concerns for gender equality, human dignity, public safety, secularism, or some combination thereof. Such variants and ambiguities in national practice suggest there is a need for guidance from international human rights law. In Leyla Şahin v. Turkey, the European Court of Human Rights had an opportunity to set European standards in the matter of regulating the wearing of religious symbols in universities. The case also had the potential to provide national authorities and courts with detailed guidelines that might inform their choices and decisions concerning permissible and impermissible restrictions on the wearing of religious clothing in the ‘public sphere’. For reasons discussed here, however, the Court took a general and abstract approach to the subject that now predetermines the outcome of similar cases and precludes any alternative reading of the substantive issues involved.
In this book the interaction between the rights guaranteed in the European Convention of Human Rights (ECHR) and private international law has been analysed by examining the case law of the European Court of Human Rights (the Court) and selected national courts. In doing so the book focuses on the impact of the ECHR on the three main issues of private international law: jurisdiction, applicable law and the recognition and enforcement of foreign judgments. Next to a list of cases consulted and a comprehensive bibliography, the book offers brief introductions to PIL and the ECHR for readers who are less familiar with either of the topics. This makes the book not only a valuable tool for specialists and practitioners in the fields covered, but at the same time a well-documented basis for students and starting researchers specializing in either or both directions.
Whenever a society faces the difficult process of substantial political transition after a period of gross human rights violations, the issues of justice, reconciliation, truth and reparation appear on the agenda. They form the key concepts of the emerging global paradigm of transitional justice. This booming field is faced with several unresolved and contested issues one of which is a criticism based on local and cultural particularities. In this article it is argued that it is useful to draw lessons from the universality-diversity debate in international human rights law and confront them with local and cultural challenges that arise in the transitional justice context. It seems that the ideal of inclusiveness that remains hard to realise in human rights law, despite theoretical consensus, might have better chances of being put in practice in transitional justice initiatives.
A focus on human rights violations leads to border control type human rights monitoring that provides only minimal human rights
protection, as the borderline tends towards the bottom. Moreover, it is indifferent to degrees of human rights protection
beyond the borderline, thus discouraging ambitious human rights agendas. The technique of progressive realisation may be the
basis of improved border control monitoring that avoids the downward trend. Moreover, borderline control should be complemented
with additional techniques that transform the dynamic of human rights from minimalism to maximalism.
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