Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts 9781849468657, 9781782257998, 9781509902811

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HUMAN RIGHTS BETWEEN LAW AND POLITICS This book analyses human rights in postnational contexts, and demonstrates, through the case law of the European Court of Human Rights, that the Margin of Appreciation doctrine is an essential part of human rights adjudication. Current approaches have tended to stress the instrumental value of the Margin of Appreciation, or to give it a complementary role within the principle of proportionality, while others have been wholly critical of it. In contradiction to these approaches, this volume shows that the doctrine is a genuinely normative principle capable of balancing conflicting values. It explores to what extent the tension between human rights and politics, embodied in the doctrine, might be understood as a mutually reinforcing interplay of variables rather than an entrenched separation. By linking the interpretation of the Margin of Appreciation doctrine to a broader conception of human rights, understood as complex political and moral norms, this volume argues that the doctrine can assist in the formulation of the common good in light of the requirements of the Convention. Volume 76 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: Equal Citizenship and Its Limits in EU Law Päivi Johanna Neuvonen European Law on Unfair Commercial Practices and Contract Law Mateja Durovic The European Union’s External Action in Times of Crisis Edited by Piet Eeckhout and Manual Lopez-Escudero The Legitimacy of Family Rights in Strasbourg Case Law: Living Instrument or Extinguished Sovereignty? Carmen Draghici Strengthening the Rule of Law in Europe: From a Common Concept to Mechanisms of Implementation Edited by Werner Schroeder The Pluralist Character of the European Economic Constitution Clemens Kaupa Exceptions from EU Free Movement Law Edited by Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis Reconceptualising European Equality Law: A Comparative Institutional Analysis Johanna Croon-Gestefeld Marketing and Advertising Law in a Process of Harmonization Edited by Ulf Bernitz and Caroline Heide-Jörgensen The Fundamental Right to Data Protection: Normative Value in the Context of Counter-Terrorism Surveillance Maria Tzanou Republican Europe Anna Kocharov Family Reunification in the EU Chiara Berneri EU Liability and International Economic Law Armin Steinbach The EU and Nanotechnologies: A Critical Analysis Tanja Ehnert For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law

Human Rights between Law and Politics The Margin of Appreciation in Post-National Contexts

Edited by

Petr Agha

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

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www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Petr Agha 2017 Petr Agha has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-865-7 ePDF: 978-1-50990-281-1 ePub: 978-1-50990-282-8 Library of Congress Cataloging-in-Publication Data Names: Agha, Petr, editor. Title: Human rights between law and politics : the margin of appreciation in post-national contexts / Edited by Petr Agha. Description: Portland, Oregon : Hart Publishing, 2017.  |  Series: Modern studies in european law ; volume 76  |  Includes bibliographical references and index. Identifiers: LCCN 2017017560 (print)  |  LCCN 2017022674 (ebook)  |  ISBN 9781509902828 (Epub)  |  ISBN 9781849468657 (hardback : alk. paper) Subjects: LCSH: Human rights—Europe.  |  Human rights.  |  Convention for the Protection of Human Rights and Fundamental Freedoms (1950 November 5) Classification: LCC KJC5132 (ebook)  |  LCC KJC5132 .A913 2017 (print)  |  DDC 323.01—dc23 LC record available at https://lccn.loc.gov/2017017560 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Contents Introduction��������������������������������������������������������������������������������������������������������������1 Petr Agha 1. Universalism and Relativism in the Protection of Human Rights in Europe: Politics, Law and Culture�������������������������������������������������17 Steven Greer I. Introduction��������������������������������������������������������������������������������������������17 II. The Relative Universality of Human Rights������������������������������������������18 III. Human Rights, Multiculturalism and Minority Rights������������������������21 IV. The Margin of Appreciation Doctrine under the ECHR����������������������27 V. Culture and the Margin of Appreciation�����������������������������������������������31 VI. Conclusion����������������������������������������������������������������������������������������������34 2. On the Varieties of Universalism in Human Rights Discourse������������������37 Ben Golder I. Introduction: Europe, Human Rights and the Universal����������������������37 II. Modernist Universalism and its Critics��������������������������������������������������41 III. The Limits of Particularism and the Returns of the Universal���������������������������������������������������������������������������������������44 IV. Human Rights and Hegemonic Universalism���������������������������������������49 V. Concluding Thoughts�����������������������������������������������������������������������������53 3. When Human Rights Clash in ‘the Age of Subsidiarity’: What Role for the Margin of Appreciation?��������������������������������������������������������������������55 Stijn Smet I. Introduction��������������������������������������������������������������������������������������������55 II. Setting the Scene: Preliminary Remarks on the Margin of Appreciation and Subsidiarity�����������������������������������������������������������57 III. The Court, the Margin of Appreciation and Human Rights Clashes��������������������������������������������������������������������59 IV. The Court and the ‘Clashing Rights’ Principle��������������������������������������61 A. The ‘Clashing Rights’ Principle is Inconsistent with its Own Historical Origins�����������������������������������������������������62 B. The ‘Clashing Rights’ Principle Does Not Cohere with the Court’s Wider Case Law���������������������������������������������������63 V. A Reinterpreted Role for the Margin of Appreciation in Human Rights Clashes�����������������������������������������������������������������������65 VI. Conclusion����������������������������������������������������������������������������������������������69

vi  Contents 4. The Margin of Appreciation as an Underenforcement Doctrine���������������71 Dimitrios Tsarapatsanis I. Introduction������������������������������������������������������������������������������������������71 II. Underenforcement, Institutional Considerations and the MoA�����������������������������������������������������������������������������������������74 III. Explaining the Underenforcement of Convention Rights: Resource-Bounded Enforcement of the ECHR����������������������78 IV. Justifying the Underenforcement of Convention Rights: Normative Institutional Considerations���������������������������������84 A. Shared Responsibility�������������������������������������������������������������������84 B. Subsidiarity�����������������������������������������������������������������������������������86 C. Legitimacy�������������������������������������������������������������������������������������87 5. Anything to Appreciate?: A Sociological View of the Margin of Rights and the Persuasive Force of Their Doctrines������������������������������������������������89 Jiří Přibáň I. Introductory Remarks��������������������������������������������������������������������������89 II. Jurisprudential Triviality of the Margin of Appreciation Doctrine: General Remarks������������������������������������������������������������������90 III. The Council of Europe between the Universality of Rights and the Particularity of Cultures�����������������������������������������92 IV. The Semantics of Rights in Politics, Law and Public Morality: From Normative Philosophies to the Social Systems Theory of Rights�����������������������������������������������������������������������������������93 V. Human Rights, Their Evolution and Paradoxes: A Sociological Perspective��������������������������������������������������������������������97 VI. Human Rights as Power Constellations�����������������������������������������������99 VII. The Force and Limits of Legal Doctrine��������������������������������������������101 VIII. Anything But Discretionary Power?��������������������������������������������������104 IX. From Different Reasons to the Reasonable Differences in the Margin of Appreciation of Doctrine���������������������������������������106 X. Concluding Remarks: Human Rights, Functional Differentiation and the Impossibility of Justice��������������������������������109 6. The Prisoner’s Dilemma: The Margin of Appreciation as Proportionality or Recognition?������������������������������������������������������������������111 Marco Goldoni and Pablo Marshall I. Introduction����������������������������������������������������������������������������������������111 II. Two Versions of the Margin of Appreciation������������������������������������112 III. The European Saga of Prisoners’ Voting Rights��������������������������������114 A. Preliminaries�������������������������������������������������������������������������������114 B. The Hirst Case�����������������������������������������������������������������������������115 IV. Framing the Issue: Legal or Political Constitutionalism?�����������������119

Contents vii V. The MoA and Proportionality Review: Trivialising the Right to Vote�����������������������������������������������������������������������������������122 VI. Reasoning on the Right to Vote�����������������������������������������������������������126 7. Social Sensitivity, Consensus and the Margin of Appreciation����������������129 Nicholas Bamforth I. Approaches to the Margin of Appreciation����������������������������������������130 II. Sexuality and Same-Sex Partnerships�������������������������������������������������133 III. Morally Contentious Expression���������������������������������������������������������140 IV. Conclusion�������������������������������������������������������������������������������������������144 8. Religious Rights and the Margin of Appreciation��������������������������������������145 Dominic McGoldrick I. Introduction�����������������������������������������������������������������������������������������145 II. The Place of Religion in the ECHR�����������������������������������������������������146 III. Religion and Human Rights����������������������������������������������������������������146 IV. The Jurisprudence of the ECtHR on Religious Rights�����������������������149 V. The MoA in Religious Cases����������������������������������������������������������������152 A. The Role of Consensus in Determining the MoA����������������������152 B. Critiques of the Application of the MoA in Religious Rights Cases����������������������������������������������������������������������������������154 C. The Wide MoA and the ‘Fair Balance’ in Religion Cases�����������154 VI. Case Study: Fernandez Martinez v Spain���������������������������������������������158 VII. Concluding Comments������������������������������������������������������������������������166 9. The Paradox of Human Rights and the Role of the European Court of Human Rights in Keeping it Alive������������������������������������������������169 Petr Agha I. Preliminary Remarks���������������������������������������������������������������������������169 II. Human Rights as a Means, Not as an End������������������������������������������172 III. Human Rights as a Self-authored Normative Framework�����������������176 IV. Conclusions������������������������������������������������������������������������������������������182

Index�����������������������������������������������������������������������������������������������������������������������185

viii 

Introduction PETR AGHA

W

HEN WE READ the literature dealing with the jurisprudence of the European Court of Human Rights (hereinafter ‘Court’ or ‘ECtHR’) and its practice and argumentation, one particular part of its jurisprudence seems to stand out—the judge-made interpretive principle, the so-called margin of appreciation (hereinafter ‘MoA’ or ‘doctrine’). The reader often learns that the MoA is immensely dangerous for the preservation of human rights (culture) or that it is an instrument which serves as an apology for yielding universal human rights to the wishes of governments to limit human rights.1 The abundance of references to the margin of appreciation in the case law of the Court has received severe criticism from scholars, and also occasionally from individual judges of the Court itself. They all seem to arrive at a very similar conclusion—the role and function of universal human rights framework and that of the Court, to act as external guardians, is severely hindered by the prevalence of the MoA in the jurisprudence of the Court. More specifically, we can identify three broad groups which somehow summarise the many fronts on which the MoA is criticised. First, the margin of appreciation doctrine is often seen as an inconsistent and opaque part of the Court’s jurisprudence. It is criticised for how it undermines the normative guidance of substantive rights and how it allows normative ambiguity to enter the decisionmaking process of the Court. Such erosion in turn undermines the ability of the Strasbourg system to safeguard the Convention rights and leads to inconsistent standards of human rights in the seemingly similar cases. Second, undermining normative expectation undermines the role and legitimacy of the Court itself. If the MoA becomes an integral part of the practice of the Court, the Court itself runs the risk of effectively abdicating its supervisory role. Third, the MoA tends to infuse the practice of the Court with subjective and relativist standards, which undermine the very idea behind the Convention and the concept of human rights in general, that is, universally valid standards. Judge De Meyer, writing in his dissenting opinion in the Z v Finland case, famously summarises the common attitude we come across when it comes to the

1  See, eg, CS Feingold, ‘The Doctrine of Margin of Appreciation and the European Convention on Human Rights’ (1977) 53 Notre Dame Lawyer 90, 95, 106; E Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’ (1998–99) 31 New York University Journal of International Law and Politics 843; G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of Legal Studies 705.

2  Petr Agha question of the relationship between human rights and the doctrine of the margin of appreciation, and the role it plays in contemporary human rights adjudication in Europe: ‘Where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.’2 Even more tellingly, he continues: ‘I believe that it is high time for the Court to banish that concept [of margin of appreciation] from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies.’ The aim of the Council of Europe, at its inception, was to achieve greater unity between European states in the aftermath of the Second World War and to protect and promote their common heritage (and to facilitate the socio-economic progress).3 The political democracies of the Contracting Parties should accordingly play a significant role in the development of the standards of the European Convention on Human Rights (hereinafter ‘ECHR’ or ‘the Convention’) and should not just await the Court’s dynamic interpretation. The Preamble does not merely leave the rights to ‘common understanding and observance’ of human rights, but also to the ‘effective political democracy’. The domestic authorities can thus be considered not only empowered, but also obligated to interpret and apply the ECHR in good faith and in accordance with international standards without taking advantage of the subsidiary nature of the international review under the ECHR. In this respect, the Court’s relationship with the Member States is crucial. The Strasbourg system is on the one hand a judicial framework providing for human rights protection, but on the other hand is dependent for its realisation on the Contracting States who work in tandem with the Court. The MoA was originally applied in the context of derogations, but has now spread to the interpretation of the scope of obligations under some aspects of all the substantive articles and to the accessory protection against discrimination in Article 14.4 The MoA was for the first time introduced and described in the Belgian Linguistic case, where it recognised the discretion of states alongside the subsidiarity of its review, observing that ‘it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention’. Above all, the Preamble calls for an ‘effective recognition and observance of the rights therein declared’ and establishes that the Convention rights are best preserved by ‘an effective political democracy’. It must be read together with the general provision of Article 1 ECHR, which states: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ At the same time, Article 53 provides that nothing 2 

Z v Finland (App No 22009/93) [1997] 25 EHRR 371, dissenting opinion of Judge De Meyer at [9]. Statute of the Council of Europe, opened for signature on 5 May 1949, 87 UNTS 103, art 1 (entered into force 3 August 1949). 4 See O Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the ECHR’ (2014) 14 Human Rights Law Review 647. 3 

Introduction 3 in the ECHR shall limit the rights and freedoms otherwise secured under domestic law. Yet, at the same time Article 53 prevents the Contracting Parties from diminishing or deviating from higher national and international standards. Since nothing in the ECHR can be invoked to limit the guaranteed rights and freedoms, the principle of subsidiarity cannot legitimately be invoked to strike a fair balance to the detriment of individual rights. Here we see that the Convention clearly sets certain standards that must be universally observed in all Member States. However, the list of fundamental rights formulated in the general language of the Convention is very difficult to interpret into more specific rules and principles suitable to provide solutions in individual cases. The jurisprudence of the Court acknowledges that: ‘By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in [a] better position than the international judge to give an opinion on the exact content of the [Convention] requirements’.5 However, the acknowledgement of the aforementioned jurisprudential difficulties leave ‘intact the supervisory function of the European Court’.6 This leaves the Court (or previously the European Commission on Human Rights)7 in a rather complex role which calls for both legal and diplomatic skills. The result is a very measured advance in the first 15 years of the Court’s existence, where the objective of providing justice to individuals was carefully balanced ‘with both national and geopolitical interests’.8 However, in the mid- to late 1970s, some of the most decisive developments took place and the foundations of what is now known as dynamic human rights doctrine were laid down. In a series of landmark decisions, the ECtHR laid out the fundamentals for the future understanding of the Convention and the jurisprudence of the Court. The mechanism of individual applications gained importance and consequently set the system of Strasbourg jurisprudence in motion. The mechanism of individual application clearly broke away from the so-called ‘measured development’ which governed the activity of the Strasbourg bodies up to the mid-1970s. In Handyside v UK, we read the following lines: ‘The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted.’9 5 

Handyside v UK (App No 5493/72) [1976] ECHR 5 (7 December 1976) [48]. E Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge, Cambridge University Press, 2006) 37. 7  For a detailed presentation of the former and current ECHR procedure, see A Mowbray, Cases and Materials on the European Convention on Human Rights (London, Butterworths, 2001) ch 1. 8 MR Madsen, ‘Legal Diplomacy: Law, Politics and the Genesis of Postwar European Human Rights’ in S-L Hoffmann (ed), Human Rights in the Twentieth Century: A Critical History (Cambridge, ­Cambridge University Press, 2011). 9  Handyside (n 5) [48]. 6 

4  Petr Agha The above quote from the seminal Handyside case succinctly expresses the ­ ackdrop against which the European human rights system operates. The Conb vention is, on the one hand, quite resolute in demanding that each and every country respects certain common standards of human rights, but, on the other hand, the implementation of common standards may be secured in different ways. The Court in The Sunday Times v UK10 underlined the non-absolute feature of the discretion used by the Contracting States and the existence of wide and narrow margins of appreciation. It was soon followed by a series of cases in which the Court laid out the foundations of the MoA and human rights jurisprudence in Europe more generally. In Tyrer v UK, the Court held that the ECHR as a ‘living instrument’ ‘must be interpreted in the light of present-day conditions’. The ‘practical and effective’ doctrine was in itself of considerable importance to the interpretation of the Convention as it spelled out that the protection of the rights we find in the Convention was not an abstract exercise.11 In Marckx v Belgium, the ECtHR confirmed that a dynamic interpretation of the text of the Convention is necessary to ensure that the protection of human rights in Europe is kept up to date. Crucial jurisprudential development is also linked to the interpretation of Article 3, namely the case of Ireland v UK, which stated that neither a national margin of appreciation nor derogation under Article 15 could justify the practice of inhuman and degrading treatment.12 In Airey v Ireland, the Court noted that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. Generally speaking, the doctrine is a form of deference to local preference exercised when determining the normative contents and requirements of the Convention rights.13 What is commonly referred to as the margin of appreciation doctrine is in fact a four-step process of evaluation: (i) fact-finding and analysis; (ii) evaluating the scope of rights; (iii) balancing between individual rights and the public demands; and (iv) balancing between competing rights.14 The ECHR is pluralistic in the sense that the enforcement system is highly decentralised. The ECHR is interpreted and applied not only by the Court (Article 19), but also by domestic authorities (Article 13). The application of the Convention ‘is given both to the domestic legislator … and to the bodies, judicial amongst others that are called

10 

Sunday Times v UK [1979] 2 EHRR 245 [68]. [European Convention on Human Rights] is intended to guarantee not rights that are ­theoretical or illusory but rights that are practical and effective.’ Airey v Ireland, 9 October 1979, Series A no 32, §24. 12  Ireland v UK (App No 5310/71) [1978] ECHR 1 (18 January 1978). 13  See, eg, R Higgins, ‘Derogations under Human Rights Treaties’ (1978) 48 British Yearbook of International Law 281, 296–315; TA O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’ (1982) 4 Human Rights Quarterly 474, 475, 479–90; LR Helfer, ‘Consensus, Coherence, and the European Convention on Human Rights’ (1993) 25 Cornell International Law Journal 133, 135. 14  P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European ­Convention on Human Rights (Cambridge, Intersentia, 2006). 11 ‘The

Introduction 5 upon to interpret and apply the laws in force’.15 The Convention is a part and parcel of each national legal order rather than an external framework which is exclusively applied in a top-down authoritative manner.16 When the Court finds a violation of a human right, its judgments do not have a traditionally understood direct top-down effect;17 instead, they are implemented in the domestic milieu by the domestic authorities and according to local preferences.18 It is the Member States who are entrusted with the protection of the values laid down by the Convention, not (primarily) the Court on its own.19 In determining its existence and level of relevance, the Court mainly looks at the practice of the Contracting ­Parties.20 The substantive content of the ECHR is therefore worked out in a process of weighing and balancing between the different aspects of each and every case. The concept of universal human rights trumping the world of politics, which is supervised by powerful courts and individual judges à la Dworkin’s Hercules, plays an important part in the imagination of many Europeans, who look to the Court to provide remedies for the violation of their human rights. For many Europeans, this idea represents an attractive response to controversies relating to abortion, gay rights, gender roles or the place of the so-called traditional values in the contemporary world. The common anticipation is that the Convention lists a certain number of universally valid human rights and that the Court lays out a more or less straightforward chain of reasons supporting a clear central claim based on the Convention rights and the past decisions of the Court in similar cases, and that it consequently delivers a decision which protects a violated (universal) human right. Even though it is generally acknowledged that this format is almost never encountered in its pure form the practice of transnational judicial bodies, it still remains an ideal against which the performance of the Convention system is always measured. The process of the application of human rights standards with universal ambitions in particular circumstances and across no less than 47 national versions leads to a variety of forms of implementation reflecting the plural nature of the ECHR universe. This diversity is commonly addressed in terms of the margin of appreciation doctrine, which sees the Convention rights as conceptualised and experienced in a variety of different contexts and cultures. The practice of Court has a long-standing tradition of accepting pluralism and diversity, and it has long been recognised that the outcomes of a given case may vary according to the circumstances prevailing in different states. The margin of appreciation was one of

15 

ibid 738. European practice surprises because it interprets the Convention in a way which carries the provisions of the treaty so deeply into the legal systems of the Member States, favoring a European standard over diverse national ones.’ C Warbrick, ‘“Federal” Aspects of the European Convention of Human Rights’ (1989) 10 Michigan Journal of International Law 699. 17 ibid. 18  ECtHR 21 February 1986, Case No 8793/79, James and Others v UK, Series A No 98, para 84. 19  Sunday Times v UK (n 10) [59]. 20  Handyside (n 5) [48]. 16  ‘The

6  Petr Agha the focal points of the 2012 Brighton Declaration on the Future of the E ­ uropean Court of Human Rights21 and has since been explicitly incorporated into the ­Preamble of the ECHR.22 The concept of the margin of appreciation, which has been developed in the jurisprudence of the Court, suggests an ambit of discretion for national authorities in assessing the appropriate standards of the Convention rights, taking into account particular values and other distinct factors woven into the fabric of local laws and practice. While the judicial process may result in more or less specific rules applicable to other cases and other states, the many years of case law suggest that it is not possible for the Court to arrive at a sufficient precision which would be binding on 47 states of the ECHR, be generally applicable and yet provide justice in the concrete circumstances of a given case. The so-called ‘European consensus’ also plays an important role in the MoA jurisprudence and it is a difficult yardstick to find, and as such is often challenged on the grounds that human rights should not depend on what has been decided or legislated by the majority,23 or that it fails the primary mission of the Convention and the Court to set universal standards and fulfil the role of external guardian, and effectively prevents it from accomplishing it.24 Some raise the objection that by embracing the principle of MoA in adjudicating case law, the ECtHR prioritises the interests of politics over human rights. However, the MoA can be understood as a conceptual alternative to the comparatively empty and unhelpful idea of universalism. The MoA allows us to make sense of a variety of topics we encounter when we explore the pervasive dialectic between universal human rights norms and legitimate claims to pluralism. Human rights norms are drafted in a general and ambiguous way, and one of the Court’s most important functions is therefore to specify the content of the ECHR by weighing and balancing the counterweighing considerations. The notion of universal human rights, on its own, even though highly (symbolically) relevant, fails in itself to provide the actual protection of any human right. Steven Greer in his chapter debates the relationship between the universality and relativity of human rights in Europe, and identifies three principal dimensions which help us to better capture their mutual association. He begins by showing that we are not in possession of any knock-down arguments which will conclusively settle the dispute between the universality and relativity of human rights, and concludes that 21  Council of Europe, High Level Conference on the Future of the European Court of Human Rights— Brighton Declaration (2012), paras 11–12, available at www.echr.coe.int/Documents/2012_Brighton_ FinalDeclaration_ENG.pdf. 22  Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, Article 1: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.’ 23  G Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 European Journal of International Law 279, 304. 24  Benvenisti (n 1) 852.

Introduction 7 their relationship remains irresolvable. Therefore, according to Greer, it seems that the most profitable and practical territory lies in the middle ground—that is, in the acknowledgement that human rights are ‘universal’ in some senses, particularly as abstract individual entitlements, and ‘relative’ in others, particularly in terms of the specific implications they have in concrete circumstances at the national level. The MoA then plays a unique role, not only in managing the uneasy relationship between universality and relativity but also when thinking about Europe, which set up continent-wide institutions governed by constitutional pluralism. There is scope for substantial differences, particularly in the most controversial cases, regarding what Convention rights mean and how they should apply in different contexts. In this way, Convention rights are, and should be, both universal and capable of being interpreted and applied differently in varying national contexts. The values embodied in the Convention vary from fairly specific and concrete rules to very vague and indeterminate principles. The application of human rights requires the balancing of interests and goals in their context. Greer highlights the integral and essential role that the interpretive principles of proportionality and subsidiarity can play hand in hand with the MoA. It remains to be asked in what ways the universals may legitimately apply differently in diverse contexts and which institutions should be responsible for deciding how and when this should be the case. The deployment of the variable margin as a means to adjust the intensity of its review is precisely related to the Court’s need to make a hard choice when grappling with the complexity of the case presented to it. The application of the MoA is one such technique, ascertaining the means (types, suitability, proportionality etc) to attain the goals of the Convention in tandem with social objectives in a particular circumstance. On this understanding, human rights and politics, the particular and the universal, the national and the supranational, are co-implicated and relate to each other dynamically. Ben Golder in his chapter addresses one of the most common critiques of the MoA, which often begins with its characterisation as a dangerous form of cultural relativism attenuating the universal reach of human rights law. He shows the importance of pluralising our understandings of the category of the universal as well as our understanding of it. He argues that there are many universalisms and that we do not have a single way of comprehending the relationship between the particular circumstances of a human rights case and the realm of the universal. It is therefore only possible if one subscribes to a certain, closed understanding of the universal that one could assert that the margin of appreciation doctrine is at odds with universal human rights. Using the work of Laclau, Golder shows the MoA in a different light—not as a universalist tool designed to permit derogations or deviations from a universal set, but rather as enabling an ongoing and never-stilled democratic dialogue about what the universal content of human rights is and what it will become in the future. His chapter presents the process which the MoA facilitates as a kind of dynamic interaction between the particular claims to universality and the universality achieved once a human rights claim is materialised as the universal-for-the-time-being as a ­political process that neither assumes a single direction nor a single meaning to

8  Petr Agha those Convention rights. Human rights claims emerge in the light of his argument as a means of political contestation, and human rights law as a legal forum in which those claims get aired. Stijn Smet follows up with his chapter, which focuses on the moment when the dispute does not arise between human rights and politics, but precisely on the clash between different human rights. This moment represents a very important instance for any analysis of the Court’s jurisprudence. In cases where the Court adjudicates disputes between a human right and a public or general interest, the role played by rights is possibly best perceived as means to counterbalance and to provide a ‘trump’ or a ‘shield’, thus protecting individuals against their governments. However, when different human rights clash, neither the trump card argument nor the counter-majoritarian argument can really be raised. When the Court deals with human rights clashes, regardless of how it rules, one human right will win and another will lose. Against this background, Smet shows that there is often a greater cause to defer to national legislators and courts. He argues for a nuanced practice in terms of how such clashes should be approached by the Court and suggests an alternative approach which allows the Court to salvage the substantive role of the margin of appreciation in relation to human rights clashes. Absent a specification of institutional considerations, MoA appears to be either a relativist doctrine or else an outright abdication of judicial responsibility. Both of these possibilities are justifiably unattractive to those in favour of Convention rights. However, the suggestion of this chapter is that they are hardly necessary corollaries of the MoA. In fact, once we unpack the MoA in terms of under-enforcement, it becomes possible to explain and justify the MoA by appealing to specifically institutional considerations, without presupposing any kind of relativism. Substantive considerations on the possible value and importance of strong human rights, the role of politics, particular considerations or, in other words, about the content of Convention rights only tell us part of the story of the mechanisms set up by the Convention. Equally as important are institutional considerations. In his chapter, Dimitrios Tsarapatsanis focuses on the considerations that apply to the Court qua decisionmaker by virtue of its particular institutional role in a shared scheme of human rights governance across the contracting states of the Council of Europe. He proposes to analyse the role of MoA vis-à-vis institutional consideration as an underenforcement doctrine. His chapter portrays the MoA as a rational judicial strategy under conditions of resource-bounded rationality in terms of subsidiarity and shared responsibility between the Court and states parties in terms of the implementation of Convention rights. Steven Greer’s work has introduced a widely accepted distinction between a strong and a weak sense of the margin of appreciation. As noted by Alexander Somek, the point of the strong version of the margin of appreciation is to make the system recognise particularity.25 The application of this version of the MoA is 25 

A Somek, The Cosmopolitan Constitution (Oxford, Oxford University Press, 2013) 186.

Introduction 9 a way to recognise the political nature of the states and it is usually associated with an understanding of the Convention qua international treaty generating obligations of international law. The Court often employs a weak version of the MoA. This approach uses the doctrine of the MoA as a way of balancing between the rights of the individual as established by the Convention and the collective goals, interests and identities expressed by national authorities. Such an understanding basically collapses the MoA into a proportionality test, that is, a review of potential interferences to individual rights that can be justified when they are proved to be proportional. While the MoA is often criticised for a lack of conceptual specification and theoretical incoherence and is portrayed as a mere exercise of discretionary power, Jiří Přibáň, instead of criticising the doctrine for compromising the uniformity of the ECHR, argues that the doctrine’s ability to make the meaning of rights flexible and variable actually contributes to the preservation of the ECHR’s general value and normative force. He characterises the modern political condition as one where the ethics of virtue is replaced by the morality of norms, including normative claims formulated through the language of rights. This transformation into charters and catalogues of rights allows states, international organisations and supranational political and legal entities, such as the EU and the Council of Europe, to derive their legitimacy from human rights and not the ultimate ideal of a just society. Therefore, in the modern social condition, the virtue of justice has been replaced by the morality of rights. Rights have become new common goods and the margin of appreciation doctrine should guarantee that they are justly distributed to all segments of European society, though in the differentiated manner. In this vein, the MoA appears as an argumentative strategy which allows for the strengthening of the legitimacy of rights regime as the common normative ground. It keeps the minimum unity in the argumentatively and institutionally pluralistic environment and thereby guarantees the stable projection of human rights norms in its relatively volatile normative environment. The language of rights as used under the MoA doctrine incorporates the conflict between formal legality and its ‘informal’ social environment of politics, economics, education, the mass media etc. Přibáň’s chapter concludes on a cautionary note, whereby he argues that such a concept of human rights recognises and understands only those practices of distributive justice operating through the language of human rights and its specific doctrines, such as the MoA. Marco Goldoni and Pablo Marshall focus on this particular tendency in the jurisprudence of the Court. According to them, balancing (and in particular proportionality stricto sensu) has become the dominant technique adopted by national constitutional courts to solve the conflict between fundamental rights and public interests. They perceive the prevalence of proportionality in a number of different issues to be suspicious. The concern here is that proportionality analysis is inadequate to adjudicate on certain fundamental rights. In the most straightforward way, such a limitation is recognised by the Convention itself by positing that the protection of certain rights is absolute. But this is not the only limit of

10  Petr Agha ­ roportionality analysis: when conducted in a procedural mood, proportionality p analysis circumvents any scrutiny of the substance of a right. And yet it has become so prevalent in today’s Europe that in the string of cases relating to prisoners’ ­voting rights, it was adopted not only by the Court, but also by the other institutions involved in those controversies. Proportionality reasoning tends to obscure the political stakes of deciding around the boundaries of the right to vote, making the question of the fittest institution for adjudicating these issues redundant and oblivious to the nature of the right in discussion. The chapter analyses the MoA in the cases concerning the Prisoner Disenfranchisement saga as a way to highlight a range of issues surrounding the right to vote and, more specifically, the nature and scope of this right in the context of contemporary Europe. Goldoni and Marshall show that the legal and political reasoning adopted in these cases has not only depoliticised an issue which lies at the core of the political process, but has also reduced the whole issue of the right to vote to a matter of jurisdictional competence. The adoption of proportionality analysis therefore warps the institutional dialogue that the MoA is supposed to enhance. The MoA is a complex and sophisticated instrument for international bodies supervising polycentric rights claims. The factors that comprise the MoA may combine and interact in different ways, sometimes pulling in different directions in the context of a single case. In his chapter, Nicholas Bamforth argues that it may be helpful to understand the margin more generally in terms of a combination of legal, principled and political considerations. The discretion available to signatory states depends in part on the extent to which there is ‘common ground’, ‘consensus’ or ‘agreement’ at the national level concerning the aim of the restriction under challenge, or according to which the evolution of the margin is related to the developing legal position in the states. Bamforth follows two sets of ECtHR decisions involving claims based on ‘qualified’ rights and competing considerations relating to the existence of social sensitivity in the relevant signatory states: namely, cases concerning minority sexual orientations and same-sex partnerships, and concerning artistic expression which causes offence to those with particular religious sentiments. He explores the roles of legal and political factors in relation to key ECtHR decisions concerning same-sex partnerships and morally contentious expression. In these contexts, political factors cannot provide a complete explanation of the margin’s operation and thus reference to legal considerations and sometimes arguments of principle is necessary. The ‘consensus’ approach, which plays a key role in the relevant case law, is seemingly a political factor, and the operation of the MoA from case to case appears to involve a policy choice concerning the respective weight to be granted to Strasbourg-level and nationallevel decision-making. However, this does not exhaust the full range of factors in play in same-sex partnership or morally contentious expression cases. While the relationship between non-political and political factors is slightly different in the two groups of cases—most likely as a practical consequence of the issues and claims involved in each group—both factors have a part to play. Unless one is convinced that judicial decision-making turns solely on personal preferences and

Introduction 11 that ­references to texts and precedents are merely a cover for judicial politics, it therefore seems clear that there is a role for legal factors in all of this. This complexity and uncertainty may not satisfy jurisprudential purists or pure universalists, but it represents a sensible pragmatic legal doctrine for a system applying to 47 states and over 820 million people. Thus conceived, the MoA plays a crucial role in building a complex multi-level community amongst the 47 Council of Europe states. The MoA can thus assist in mediating between the ideas of universal human rights and leaving space for reasonable disagreement, legitimate differences and national or local cultural diversity. The MoA is a sufficiently sophisticated and flexible instrument of supervision that is sensitive to special historical or political considerations, the relative importance of the interest at stake, sensitive moral or ethical issues, the balancing of private and public interests, and complex scientific and technical issues. Assessing all of these kinds of factors in religion-related cases seems particularly pertinent, as they allow for acceptable overall balance, which can be achieved in a number of ways. In Dominic McGoldrick’s chapter, the MoA is presented as a process of reasoning, contestation and evaluation that is engaged in by democratic parliaments and courts and, to some extent, the people. McGoldrick highlights the importance of giving significant weight to the existence or non-existence of a consensus, as it allows the ECtHR’s jurisprudence to keep pace with but not to move so far ahead of societal changes within Europe that it would create a significant risk of rights not being protected. In determining the MoA, the existence of a consensus is significant in terms of weighting, but it is not necessarily decisive or determinative, instead reflecting a stage of development within a particularly dynamic field of law. An important aspect of looking for a consensus is that the jurisprudence on particular controversial issues may take a significant amount of time to be established. This gives states time to reflect on comparative social, economic and scientific developments both within and across states. The practice of the MoA demonstrates the relevance of ‘the political’ and ­seemingly brings human rights and politics into some form of collaborative engagement. Although the interplay between politics and human rights adjudication has generally been acknowledged, there has been a tendency to construe human rights as somehow apart from the political and, moreover, to situate human rights adjudication exclusively within the domain of the Court and the language of the law. In his chapter, Petr Agha presents the MoA both as an integral tool of human rights discourse and as a site where the endless proliferation of meanings associated with the idea of human rights meet, become disrupted and gain new forms and new meanings. Human rights realisation is on his reading only enabled by a continuous reconstitution of political explanations and of human rights discourse. Human rights under the MoA help to integrate human rights within the political fabric of the polis, integrating them into the very functioning of society. His chapter reconceives human rights as embedded within community and as ‘self-authored’ and emergent through collaborative activities. Resonant with this is the emphasis he puts on human agency as realised through individual applications, which are

12  Petr Agha presented as a form of critique that has the capacity to re-establish the productive tension between human rights and the political life of society. When the individual application is lodged, it becomes a representative of a larger (political) issue—the claim is not just the claim of an aggrieved individual, who looks to the Strasbourg mechanism for protection, but rather couples the protection of individual human rights with a much broader dimension, that is, with the idea of participation and recognition within the wider framework of the political community. While the existence of strong Convention rights with an undisputed claim to universality may be viewed as an ontological necessity for achieving the goals of the Convention, it does not necessarily follow that the perceived ontological primacy of human rights should automatically reject the plurality of the world. By the same token, if a human right would be allowed to trump all other claims, it would undoubtedly take no notice of the fact that the existence of human rights and their catalogues are based on decisions which cannot be taken independently of the consequences of their implementation upon the community. The specific circumstances of local politics, histories and sentiments are not necessarily in opposition to individual human rights; rather, they contribute to their definition (and fulfilment). Although defined on the grounds of a concern for individual well-being, human rights establish the common good of the whole society.26 We might think here of struggles over the right to an abortion, political work toward marriage benefits for same sex couples. In efforts such as these, the focus on individual case and negative rights (freedom from) only would leave out the entire fabric against which such struggles emerge. The idea of human rights of an individual as realised qua others (community) thus extends adjudication under the Convention into more complex arrangements. Thus, the space that seemingly separates human rights from politics is comparable not to so much to borders, but rather to passages of interpretation and justification. It merely recognises that the specification of general principles in concrete political and social situations will very often require a complex and uncertain balancing of different valuables and the exercise of difficult choices. The fact that the MoA enhances pluralism in relation to the interpretation and application of human rights does not automatically mean that it undermines or even destroys whatever is ‘fundamental’ about human rights. Human rights are not ‘universal’ in terms of being equally applicable across the board in every situation—each situation has its own sense of universality and particularity.27 The functional recognition of indeterminacy allows for the reflection of heterogeneity throughout the layers of European society. Particular circumstances are 26  ‘The right's holder's interests are only part of the justifying reason for many rights. The interests of others matter too. They matter; however, only when they are served by serving the right of respect for people that deontologists claim to be independent of consequentialist considerations depends, in fact, on some considerations about values. Holder's interests, only when helping the right-holder is the proper way to help others.’ J Raz, ‘Rights and Politics’ (1995) 71(1) Indiana Law Journal 89. 27  ‘Can Change Be Thought? A Dialogue with Alain Badiou (with Bruno Bosteels)’ in G Riera (ed), Alain Badiou: Philosophy and its Conditions (Albany, State University of New York Press, 2005) 252–53.

Introduction 13 not something that needs to be filtered out as an impediment to the true universal meaning of human rights; on the contrary, it secures the ability of human rights to bring about fundamental changes in the landscape of European societies by refusing the easy option of interpretation within some pre-given framework and thus transforms the text of the Convention into a truly living instrument which allows Europeans to communicate about the conditions of their living together. For these reasons, decisions about the content of rights cannot be independent of choices about how we want our society to be. If there really is a universal representational framework of shared values, then the existence of the Convention already signifies that human rights are connected across multiple pockets of meanings and cultures and are already disposed towards a variety of meanings. In order for the Court to be able to deploy a universal meaning of human rights in the case law, it would need to strip down a great amount of detail relating to the right and the situation in which this right emerged and to exclude many of the variables in each given case. But it is only if we include these variables in the equation that we obtain a meaningful reading of the Convention rights and not for practical or opportunist reasons, but because such variables are constitutively part of every meaningful human rights regime. Once we examine different cases that arrive at the Court, it becomes clear that the substantive normative content entrenched in human rights norms is quite complex. Although the rights specified in the Convention are to be understood as having substantive, deontic content, they are also required for realising the broader goals of the Convention as well as the principles it enshrines in the broader political community of 47 Council of Europe states. The tasks involved are numerous: keeping open the channels of political change, guaranteeing that individuals’ civil, membership, legal, political and social rights are respected, scrutinising the constitutional quality and propriety of the reasons justifying governmental action, and ensuring that the channels of influence from independent, civil society public spheres remain unobstructed and undistorted by administrative, economic and social powers. Articulating such complexity through the medium of human rights of course inherently reduces the complexity of the case, but at the same time provides us with a (legal) structure, which we can employ to come together, make decisions and set the terms of our living together. Using this structure often involves using the threads and the materials that already exist in a given culture in order to work out the meaning of a human right in a particular situation. However, this link between the framework of the Convention and local circumstances lends the human right in question a different meaning from that often proposed by critics of the MoA. Applying a human rights framework to a specific context and allowing all the many variables to play a role in the process of adjudication situates it very differently from the one defined as expressing an objective order of values. In each case, the equilibrium of the different aspects can be achieved in different ways, and each interpretation of the scope of a right involves some assessment of the different, specific aspects of the issue at hand. Therefore, the meaningful

14  Petr Agha application of a generally formulated human right does not consist in protecting it from the influence of others, but coincides with the ability to effectively use it in different circumstances. Any implementation of the Convention rights thus f­ ollows a vector which is inscribed within the larger framework. The invocation of the same right by the same groups or individuals can result in different answers to the same problem at different moments in time. Human rights operate in a certain context with a certain number of components, which rearrange themselves in an effort to resolve a certain problem. The framework within which the Court ­oscillates is not marked out by the movement from the particular (the individual case) to the universal (individual rights), but from singular case to singular case. As Brice Dickson notes, the Convention is part of a building project, not merely a fire-fighting operation.28 It is therefore far more accurate and practical to recognise that human rights arise from a consensus on common values, which arise from within the very traditions and cultures that gave life and meaning to the human rights frameworks.29 The specification of the general principles of human dignity in concrete political and social situations will very often require a complex and uncertain balancing of values and the exercising of difficult choices of political morality. Human rights are therefore reconstructed as a forum in which the meaning of political legitimacy is continuously renegotiated rather than being final expressions of the moral law or the progressive unfolding of universal standards. This understanding reconnects the idea of human rights to actual (political) struggles and social movements in which rights are established, defined and contested, making it difficult to narrate the story of human rights as one of the progressive unfolding of universal rights and to frame human rights practice as non-political. The gesture of the individual application identifies a form of occurrence which is not reducible to either a universal value or a particular case at hand. Instead of closing down imagined conceptions of human rights, we must imagine the ways in which our concepts of human rights are always already between and shared. The final figure, according to this paradigm, is not the Court or a member state that is in violation of a human right, but the individuals who, by claiming that their rights have been violated, reconstruct both the practice and the idea of human rights in light of their own experience, all by lodging their individual application. While some authors have heavily criticised the MoA as failing the importance and content of human rights in their role as constitutional principles, in opposition to those views, this volume proposes to appreciate the practice of the Court,

28  B Dickson, ‘Positive Obligations and the European Court of Human Rights’ (2010) 61 Northern Ireland Legal Quarterly 203–08. 29  RD Sloane, ‘Outrelativizing Relativism: A Liberal Defense of the Universality of International Human Rights’ [2001] Vanderbilt Journal of Transnational Law 530, 540.

Introduction 15 as expressed in its use of the MoA doctrine, as a coherent normative project that is capable of resolving conflicts between fundamental constitutional values. The Strasbourg system therefore represents a distinct moral and legal system as much as a certain political experience. The Court is a forum which allows for different conceptions of individual and collective goods to be discussed in the language of human rights, particularly in the form of adjudicating conflicts between various individual and collective rights claims against the existing concepts of the public good, as well as tensions within the respective rights themselves.

16 

1 Universalism and Relativism in the Protection of Human Rights in Europe: Politics, Law and Culture STEVEN GREER1

I. INTRODUCTION

F

OR THE PURPOSES of this chapter, the two key concepts with which the conference prompting the publication of this volume was principally concerned2—cultural diversity in Europe and the ‘margin of appreciation’ doctrine—require some initial consideration. Broadly speaking, ‘culture’ refers to shared habits of living, behaviour, thought, understanding and representation, including moral, political, social, economic and legal principles, and assumptions, artistic and architectural styles and traditions, cuisine, and even ways of sitting and sleeping. ‘Cultural diversity’—a concept found in social science, social and political philosophy, and everyday politics and social discourse—can be normative, analytical/descriptive or both. It also connects intimately and directly with deeper and wider debates about universals and variations in human experience. The ‘margin of appreciation’, by contrast, is a doctrine found in some branches of public international law that refers to the room for manoeuvre that treaty bodies, such as the judicial institutions at Strasbourg, are prepared to accord national authorities in fulfilling their treaty obligations. While in the European context,3 this concerns how much uniformity and diversity there should be between different states with respect to human rights, it does not pertain only (or even mainly) to culture. By further contrast with the concept of cultural relativism, the margin of appreciation is entirely normative and has no descriptive or analytical dimensions.

1  The author would like to acknowledge his appreciation to Tonia Novitz for helpful comments on an earlier draft. The usual disclaimers apply. 2  ‘Conference on the Margin of Appreciation and Cultural Diversity in Europe’, Centre for Excellence in Foundations of European Law and Polity at the University of Helsinki and Centre for Law and Cosmopolitan Values at the University of Antwerp, Helsinki, 7 May 2012. 3  For the present purposes, this largely refers to the Council of Europe mainly because, with 47 of Europe’s 48 states, it is much more inclusive than the 28-member European Union, which has also only taken a formal interest in human rights comparatively recently.

18  Steven Greer With this in mind, this chapter considers, and attempts to make sense of, universalism and relativism in the protection of human rights in Europe as follows. To begin with, debates about the universality/relativity of human rights, and about multiculturalism and human rights, will be reviewed. The margin of appreciation doctrine in the case law of the Strasbourg institutions, and its relationship with culture in particular, will then be examined before some conclusions are reached. Themes weaving in and out of these issues include, first, when and how normative arrangements differing between states, or between social groups within a given state, can legitimately be derived from the same human right. In other words, how and when can a distinction be drawn between a legitimate variation in the application of a putatively universal human right and an illegitimate violation? Second, to what extent is this a matter of principle or pragmatic compromise—or, if a mixture of both, in what proportions? Third, who has the responsibility for making such decisions: national or transnational, judicial or non-judicial institutions? And, finally, what roles are, and should be, played by politics, law and culture?

II.  THE RELATIVE UNIVERSALITY OF HUMAN RIGHTS

In the debate about the universality/relativity of human rights, which has arguably been rumbling on in various forms for centuries, three principal types of argument have been deployed on both sides: conceptual (claims about what core terms and ideas mean), empirical (claims about the way the world is in fact) and normative (claims about how things ought to be).4 The core of the universalist case is that human rights are conceptually universal because they derive, by definition, from our common humanity and are (and should be) independent of whatever else divides or distinguishes us from each other. A number of observations have also been made about other alleged empirical universals in the human experience, including that individual human biology, psychology, basic needs, potential and the capacity for reason are the same the world over, that reason is the only universal guide to values capable of transcending specific contexts because the other alternatives—intuition, sentiment, imagination, empathy, and revelation—are all highly culture-specific, and that globalisation is producing the world’s first global value system grounded fundamentally upon individual human rights. From this

4  See, eg, J Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Ithaca, Cornell University Press, 2013) chs 6 and 7; C Walsh, ‘Compliance and Non-compliance with International Human Rights Standards: Overplaying the Cultural’ (2010) 11 Human Rights Review 45; W Osiatyński, Human Rights and Their Limits (Cambridge, Cambridge University Press, 2009) ch 4; J Donnelly, ‘Human Rights: Both Universal and Relative (A Reply to Michael Goodhart)’ (2008) 30 Human Rights Quarterly 194; M Goodhart, ‘Neither Relative nor Universal: A Response to Donnelly’ (2008) 30 Human Rights Quarterly 183; J Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 Human Rights Quarterly 281; J Cowan, M-B Dembour and R Wilson (eds), Culture and Rights (Cambridge, Cambridge University Press, 2001); R Wilson (ed), Human Rights, Culture and Context: Anthropological Perspectives (London, Pluto Press, 1997).

Universalism and Relativism in Human Rights Protection 19 perspective, two prominent contenders for the primordial natural/human right are the right to life and the right to liberty on the putatively self-evident grounds that, without life, no other rights are possible, there is no ‘natural’ reason (ignoring the distortions of culture and prejudice) why any given human being (particularly a newborn) should have a greater entitlement to survive than any other and that individual freedom requires no justification, whereas each and every restriction upon it does.5 In response to the universalist case, the cultural relativist would reply that, as a matter of fact, all values derive from specific cultures which are, and always have been, highly diverse across time and space, with most also typically involving the thorough, systematic and enduring denial of the universal satisfaction of universal human needs, as, for example, in slave-owning societies. Any value which may appear to apply to all or at least to more than one culture or value system must also necessarily be interpreted by each, and this is also likely to result in significant differences. Cultural relativists also argue that regarding the individual as the fundamental unit of moral worth, as universalism does, is itself merely an abstract product of Western culture extended globally as a result of Western imperialism and hegemony. In fact, as cultural relativists observe, non-Western cultures typically emphasise obligations and collective interests rather than individual rights, with religion also generally requiring or encouraging the surrender of individuality to the ‘divine’ or ‘transcendent’. Since there can be no ‘culture-free’ value system, the cultural relativist concludes that communities and cultures are the only legitimate sources of values. Other normative arguments deployed by cultural relativists include the following. Equality of respect for the individual requires equal respect for the cultures which frame the identities that are integral to their individuality. Identifying equal universal human needs and capacities does not solve the problem of how burdens and benefits should be distributed, especially in conditions of scarcity, or what kinds of restriction there should be on the pursuit of self-interest, questions which throughout human history have been answered in very different ways. A slave owner, for example, commits no logical error by acknowledging that both he and his slaves share the same basic human needs, while insisting that, as master, his shall be satisfied and those of his slaves only to the extent that he sees fit. Finally, cultural relativists and others claim that indigenous cultures need to be protected from the destructive effects of modern Western neo-liberalism and that this too is a human right. The following are among several universalist counter-arguments. Conceptually, the relativity of cultures as the only legitimate source of values is itself, ironically, a universal claim. The terms ‘culture’ and ‘community’ are at least as much abstractions as the ‘individual’, with what counts as an authentic culture often unclear and contested as much by insiders as outsiders. Consider, for example, the rifts between Sunni and Shia Islam and between the Catholic, Protestant and Orthodox versions 5 See, eg, M MacDonald, ‘Natural Rights’ and HLA Hart, ‘Are There Any Natural Rights?’ in J Waldron (ed), Theories of Rights (Oxford, Oxford University Press, 1984).

20  Steven Greer of Christianity, and the intense, and often violent, disputes between believers over which might be said to be the true version of the given faith. Empirically cultures are not monolithic, impermeable, unchanging and radically distinct, with people often living in several overlapping and sometimes even conflicting cultures at any given time. The gay daughter of Pakistani immigrants born in Glasgow could, for example, be said to inhabit gay, women’s, Sunni Muslim, Urdu-speaking, Englishspeaking, Scottish, British, European, Asian and Western cultures simultaneously. Normatively, tradition and culture are not self-evident justifications for anything and, as a matter of fact, cultural objections to human rights in the non-Western world often serve the interests of elites, whose power and wealth have often been created by modern capitalism and decolonisation, and who co-opt and distort ‘indigenous cultures’ in order to avoid having to share, or be held accountable for, their privileges. Finally, to respect all cultures equally, as cultural relativism suggests, is self-contradictory because it requires respecting those, such as the Nazis, whose exponents would cheerfully exterminate many, or even all, of the rest. With compelling arguments on both sides of the universalist/relativist debate, most commentators now accept that human rights are universal at the conceptual, global and international legal levels, while simultaneously relative in terms of national, regional and cultural implementation.6 Several other observations might be added about the relative universality of human rights. First, analogies can be drawn with other ‘relative universals’ in the human experience. Take death for example. While we all must die (a universal), this can happen in diverse or relative ways, including before birth, at a ripe old age, as a result of crime, accident, ill-health or quirks of physiology, suddenly or slowly, peacefully and painlessly, or in great anguish and distress. Language is also a relative universal, manifested not only in all human cultures, but also in some 7,000 highly diverse and mostly mutually incomprehensible contemporary languages. Admittedly neither death nor language is the same as a standard or norm, but these examples nevertheless illustrate that, at least as concepts, ‘universality’ and ‘diversity’ are not inherently incompatible. Second, while the global universality/relativity debate is typically conducted in terms of universality and cultural relativity, human rights are, in fact, relative in a variety of ways apart from, or in addition to, culture. This is particularly true in circumstances where they conflict with each other, and with public interests, in highly homogeneous cultural contexts such as post-Cold War Europe.7 No matter how culturally different European nations may still be from one another, since the fall of the Berlin Wall, they have increasingly shared, albeit unevenly and incompletely, a common institutional model based on democracy, human rights, the rule of law and the regulated market. Many scholars have aptly labelled this 6  Donnelly (2007) (n 4), for example, calls this ‘relatively universality’, while Osiatyński (n 4) 182–86 distinguishes between ‘hard’ and ‘soft’ universalism. 7  See, eg, Osiatyński (n 4); L Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (Oxford, Oxford University Press, 2007).

Universalism and Relativism in Human Rights Protection 21 ‘constitutional pluralism’, a term which refers to a meta-system embodying common constitutional fundamentals, which also, nevertheless, permits a plurality of both competing and mutually consistent norms, institutions and processes at the national and pan-national levels.8 Articles 8–11 of the European Convention on Human Rights (ECHR)—which contain rights to respect for private and family life, home and correspondence, freedom of thought, conscience and religion, freedom of expression, and freedom of association and assembly, each subject to restriction in pursuit of a number of ‘legitimate purposes’, including the protection of the ‘rights of others’ and a range of express public interests, found in the second paragraphs—provide a particularly important transnational context in which the tension between universality and relativity is played out. Decisions involving the relationship between these exceptions and the rights they restrict are formally filtered through the ‘prescribed by law’ and ‘democratic necessity’ tests, and rely heavily on the margin of appreciation doctrine and the principle of ‘proportionality to a pressing social need’, considered more fully later. Prima facie, some legitimate purposes—for example, ‘national security’, ‘the economic wellbeing of the country’ and ‘territorial integrity’—are ‘pure’ public interests which can confer only collective benefits and from which individual shares cannot be extracted. By contrast, the phrases ‘the rights and freedoms of others’ and ‘the protection of the reputation or rights of others’ largely suggest individual rights and freedoms. Other restrictions on the rights found in these provisions, such as ‘health’ and ‘morals’, can plausibly be either public interests or individual rights according to the circumstances. Friction between rights, and between rights and public interests—such as that between the rights to freedom of expression and to respect for private life, or between the right to respect for private life and the protection of national security—are commonplace not only in the ECHR context, but also in contemporary liberal democracies generally.

III.  HUMAN RIGHTS, MULTICULTURALISM AND MINORITY RIGHTS

While the universalist/relativist debate has been conducted at a high level of macroscopic and transnational abstraction, in the past few decades the implications 8  See, eg, M Avbelj and J Komárek (eds), Constitutional Pluralism in the European Union and Beyond (Oxford, Hart Publishing, 2012); L Gordillo, Interlocking Constitutions: Towards an Interordinal Theory of National, European and UN Law (Oxford, Hart Publishing, 2012); M Goldoni, ‘Constitutional Pluralism and the Question of the European Common Good’ (2012) 18 European Law Journal 385; G de Búrca and J Weiler (eds), The Worlds of European Constitutionalism (Cambridge, Cambridge University Press, 2011); N Walker, ‘Reconciling MacCormick: Constitutional Pluralism and the Unity of Practical Reason’ (2011) 24 Ratio Juris 369; M Avbelj and J Komárek (eds), ‘“Spaces of Normativity”—Symposium Transcript: Four Visions of Constitutional Pluralism’ (2008) 2 European Journal of Legal Studies 325; A Hurrell, On Global Order: Power, Values and the Constitution of International Society (Oxford, Oxford University Press, 2007); M Maduro, ‘Contrapuntal Law: Europe’s Constitutional Pluralism in Action’ in N Walker (ed), Sovereignty in Transition (Oxford, Hart Publishing, 2003); N Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317.

22  Steven Greer of human rights and cultural relativities at the national level have been discussed largely in relation to the concept of multiculturalism.9 In order to understand this, we need to begin by distinguishing between societies which are monocultural or multicultural in the factual, descriptive or sociological senses, and between monoculturalism and multiculturalism in the normative sense. In the descriptive sense, monocultural societies are those which, as a matter of fact, have a single or dominant culture, language, religion, ethnicity, value system etc to which all, or the vast majority, of their members subscribe. Multicultural or cosmopolitan societies, on the other hand, are those which, as a matter of fact, have many languages, religions, ethnicities, cultures etc. Normative monoculturalism maintains that, particularly in the interests of social cohesion, all societies, even those which are multicultural as a matter of fact, need a single dominant culture or value system. Normative multiculturalism, by contrast, argues that societies which are multicultural in fact ought to recognise different rights and duties for those who belong to minority cultures, religions, races, ethnicities, linguistic groups etc. Monocultural and multicultural societies have each been part of the human experience for centuries. Typically, the cities of the great ancient empires, especially the Roman Empire, were highly cosmopolitan/multicultural, whereas island societies, such as traditional Polynesia or Iceland, were highly monocultural. In the nineteenth and twentieth centuries, European nationalists sought to provide every nation state with a single or at least dominant national culture as a matter of collective right. However, the patchwork distribution of nations across the continent doomed this project to failure, the attempt to realise it being one of the things the First World War conclusively proved. As part of the post-war settlement, the pendulum swung away from ‘cultural’ or ‘ethnic’ nationalism towards ‘collective multiculturalism’. Peace treaties imposed an obligation on defeated ‘host’ states to protect national minorities which were given a collective right of complaint to the League of Nations supported by neighbouring ‘kin’ states. The result was a double disaster. It not only failed to protect national minorities, it also exacerbated international tensions which, when combined with other factors, led to the Second World War. In its aftermath, the pendulum therefore swung decisively away from concern for the rights of national and other minorities as groups to universal individual 9 G Crowder, Theories of Multiculturalism (Cambridge, Polity Press, 2013); T Modood, Multiculturalism (2nd edn, Cambridge, Polity Press, 2013); D Newman, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Oxford, Hart Publishing, 2011); A Rattansi, Multiculturalism: A Very Short Introduction (Oxford, Oxford University Press, 2011); W Kymlicka and B Bashir (eds), The Politics of Reconciliation in Multicultural Societies (Oxford, Oxford University Press, 2008); M Keonig and P de Gucheneire (eds), Democracy and Human Rights in Multicultural Societies (Farnham, Ashgate, 2007); D McGoldrick, ‘Multiculturalism and its Discontents’ (2005) 5 Human Rights Law Review 27; B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (2nd edn, London, Palgrave Macmillan, 2005); B Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge MA, Harvard University Press, 2002); R Bhargava, AK Bagchi and R Sudarshan (eds), Multiculturalism, Liberalism and Democracy (Oxford, Oxford University Press, 1999); W Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, Clarendon Press, 1996).

Universalism and Relativism in Human Rights Protection 23 rights, including rights to express and participate in both majority and minority cultures, and a right not to be discriminated against on the basis of minority status, a principle which pervades the entire corpus of post-war international human rights law. Article 27(1) of the Universal Declaration on Human Rights 1948, for example, provides that ‘Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’, while Article 27 of the International Covenant on Civil and Political Rights 1966 (ICCPR) requires that: ‘In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religions, or to use their own language.’ Article 26 of the ICCPR also provides: ‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Similarly, Article 2(2) of the ICCPR provides that States Parties ‘undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. States which accede to the International Convention on the Elimination of All Forms of Racial Discrimination 1966 also assume positive obligations to tackle discrimination on the basis of race, ­colour, descent, national or ethnic origin, but not religion or language.10 The term ‘multiculturalism’ does not, however, appear anywhere in these treaties or anywhere else in international human rights law.11 For two main reasons, challenges posed by the multiplicity of cultural, linguistic, religious, ethnic and other minorities have become increasingly acute in postSecond World War and particularly post-Cold War Europe. First, few Western European countries have no historic ethnic tensions, and in many of the former communist states, the relaxation of authoritarian control has reopened (or threatens to reopen) long-standing disputes about the relationship between nationality and territory.12 Violent conflicts have been triggered as a result in the Balkans, Chechnya, the Caucasus and, most recently, Ukraine. Second, immigration from the Global South to the Global North, prompted by the post-Second World War economic boom and decolonisation combined with late-twentieth-century de-industrialisation, have contributed significantly to the decline of class-based ‘politics of ideology’ and to the rise of culture and ethnicity-based ‘politics of i­dentity’. 10 

Article 1. McGoldrick (n 9) 32. 12  M Weller (ed), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford, Oxford University Press, 2005) vii; J Jackson Preece, Minority Rights (Cambridge, Polity Press, 2005) ch 7. 11 

24  Steven Greer In response, the human rights lexicon has also increasingly been formally extended to include language and religion. In 1981 the UN General Assembly issued a Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief and, in 1989, the Council of Europe sponsored a European Charter for Regional and Minority Languages. In 1992 the UN issued a Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, followed by a Draft Declaration on Rights of Indigenous Peoples in 1994. Notwithstanding the terrible ethnic conflict in the Balkans in the 1990s, which some attributed to Yugoslavia’s multicultural foundations, the Council of Europe followed the European Charter for Regional and Minority Languages with a proposed minority rights protocol to the ECHR. However, this was later superseded by the Framework Convention for the Protection of National Minorities 1995 (hereinafter the ‘Framework Convention’), which was opened for signature on 1 February 1995 and came into force on 1 February 1998.13 The word ‘framework’ indicates that the principles this Convention contains are not directly applicable in the domestic legal systems of Member States, but require implementation through national legislation and public policy. Many commentators welcome the Framework Convention for having included minority rights protection in the Council of Europe’s human rights machinery and for providing the means—an Advisory Committee which receives reports from member states and may conduct country visits—by which compliance failure can be detected. However, they also typically criticise its vague, programmatic and highly qualified obligations, the lack of group rights, the scope for arbitrary identification (or non-identification) of national minorities by states, weaknesses in monitoring arrangements (particularly the political role of the Committee of Ministers), the application of inconsistent standards by parallel organisations such as the Organisation for Security and Cooperation in Europe (OSCE), and the lack of remedies or any other substantial means of enforcement.14 Nevertheless, Philips argues that, as events have unfolded, some of these alleged ‘weaknesses’ have come to be seen as strengths. The Framework Convention’s vague language has, for example, enabled it to be endorsed by more states than might otherwise have been the case, and the 13  See, eg, J Ringelheim, ‘Minority Rights in a Time of Multiculturalism—The Evolving Scope of the Framework Convention on the Protection of National Minorities’ (2010) 10 Human Rights Law Review 99; A Vertichel, A Alen, B De Witte and P Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument? (Antwerp, Intersentia, 2008); Weller (n 12); G Pentassuglia, ‘Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protection of National Minorities—With Special Reference to the Role of the Advisory Committee’ (1999) 6 International Journal on Minority and Group Rights 417; G Alfredsson, ‘A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures’ (2000) 7 International Journal on Minority and Group Rights 291; A Phillips, ‘The 10th Anniversary of the Framework Convention for the Protection of National Minorities’ (2008) 3 Euopäiasches Journal für Minderheitenfragen 181; CF Furtado, ‘Guess Who’s Coming to Dinner? Protection for National Minorities in the Eastern and Central Europe under the Council of Europe’ (2002–03) 34 Columbia Human Rights Law Review 333. 14  Furtado (n 13) 365, 367, 369, 404–10; Alfredsson (n 13); Pentassuglia (n 13) 417–20, 458–62.

Universalism and Relativism in Human Rights Protection 25 Advisory Committee has proven much more robust in its approach than some had feared.15 Concern has also been expressed about other difficulties. Manas, for example, argues that the Council of Europe currently embraces the mutually incompatible ‘republican’, or individual rights approach that underpins the ECHR, and the ‘multicultural’ perspective that underpins the Framework Convention. He also maintains that any one of the three main solutions to the problem of conflict within European states (‘republicanism’, ‘multiculturalism’ or ‘secessionism’) tends to produce the problems associated with denying one or more of the others. While, as he argues, more ‘flexible’ arrangements may be required, it is not clear what this would entail.16 Preferring the concept of ‘co-nation’ to ‘national minority’, Malloy argues for ‘a model of accommodation based on discursive justice’ and concludes that the EU’s politics of integration are more likely to cultivate this than the ‘legal approach of the politics of democratisation of the Council of Europe’.17 As a result of these and other developments, by the end of the twentieth century, multiculturalism was increasingly taken for granted by human rights activists, scholars and policy-makers as the appropriate paradigm for realising human rights in culturally diverse societies. Specific European multicultural public policies developed as a result have included: official recognition of multiple citizenship; affirmative action programmes to boost minority representation in the workforce, education and public institutions; state-funded faith schools; recognition of ­Sharia courts as a form of alternative dispute resolution; and state support for festivals and media in minority languages. However, a number of issues about multiculturalism in general, and about its relationship with human rights in particular, have not been conclusively addressed. First, why should ‘minorities’ or ‘persons from minority groups’ have rights not available to the majority? One possible answer is that this serves the largely instrumental purpose of countering material, and often historical, inequality and discrimination. However, it can also be argued that the goal is largely symbolic— officially to recognise difference both as an important constituent in framing individual identity and in enriching society. There is also some dispute over the extent to which normative multiculturalism threatens or enhances social integration, cohesion and solidarity. Second, even if it is conceded that minorities should, in principle, have group-differentiated rights, it is not always clear to which minorities this should apply. In a postmodern ‘glocalised’ world, ‘culture’ and ‘ethnicity’ are increasingly opaque categories that are much less clear-cut than language and religion. Complex overlaps between linguistic, racial and religious minorities also often make it difficult to distinguish one ‘culture’/‘minority group’ from another. Kymlicka maintains that there is a strong case for group-differentiated 15  A Philips, ‘Chronik—The 10th Anniversary of the Framework Convention for the Protection of National Minorities’ (2008) 3 Euopäische Journal für Minderheitenfragen 183, 189. 16  JE Manas, ‘The Council of Europe’s Democracy Ideal and the Challenge of Ethno-national Strife’ in A Chayes and AH Chayes (eds), Preventing Conflict in the Post-communist World: Mobilizing International and Regional Organizations (Washington DC, The Brookings Institute, 1996) 99. 17  TE Malloy, National Minority Rights in Europe (Oxford, Oxford University Press, 2005) 289.

26  Steven Greer national minority rights in states which have long been ‘multinational’, while it is weaker in ‘polyethnic’ states where differentiation has arisen as a result of post-war immigration.18 Third, even if certain minorities are identified as appropriate candidates for minority rights, whether they hold them collectively, or their members hold them in their individual capacities, also presents problems. If the former is the case, a key question concerns who legitimately represents a given minority such as the ‘gay community in the UK’ or ‘Muslims in Britain’. Parekh argues that conditions for the recognition of collective rights for minority groups should include, for example, the significance of the group for the identity of its members, whether or not it has a legitimate institutional structure, the role of collective rights in protecting the legitimate interests of the group, and the part played by collective rights in enhancing the contribution of the minority in question to society as a whole,19 a test which hinges on a number of highly indeterminate and non-objective elements. Finally, what should be done with illiberal minority cultures which do not recognise gender or sexual equality? Whose minority rights should prevail when, for example, a Christian or Muslim marriage registrar or relationship counsellor refuses to marry or give relationship advice to gay couples?20 By the beginning of the twenty-first century, in response to these and other difficulties, the pendulum was again swinging, this time away from normative multiculturalism—which, in the words of German Chancellor Angela Merkel, had ‘failed and failed utterly’21—to ‘post-multiculturalism’, characterised by increasing official emphasis upon national culture and universal values. Policies to which this has given rise include: restrictions on family members joining those already domiciled in a European state; citizenship and welfare conditional on more formal undertakings by immigrants to respect human rights, democracy, and the official language(s) and identity of the nation to which they have migrated; compulsory courses and tests in national languages, history, culture and public life; citizenship ceremonies and formal oaths of allegiance; mentoring of new citizens; official campaigns to identify and affirm national values and national culture and to establish clearer hierarchies of values; and restrictions upon certain kinds of expression of Islamic identity, including a ban on minarets in Switzerland and, in certain public contexts in several European states, on types of Muslim women’s clothing. The question of the extent to which these comply with the ECHR or not is considered next. But before doing so, three broad conclusions can be drawn on the issues considered in this section. First, individual human rights cannot be adequately affirmed and protected, either politically or judicially, without some recognition that individual identity 18 

Kymlicka (n 9). Parekh (n 9). Ewieda v UK (2013) 57 EHRR 213 [107]–[110], the ECtHR decided that, in these circumstances, the rights of gay couples should prevail over those with religious objections to gay marriage or to giving gay couples relationship advice. 21  The Guardian, 17 October 2010. See also former UK Prime Minister David Cameron’s speech in Munich, 5 February 2011: www.newstatesman.com/blogs/the-staggers/2011/02/terrorism-islam-ideology. 19 

20 In

Universalism and Relativism in Human Rights Protection 27 depends upon, amongst other things, the cultural and other groups to which anyone belongs. Second, choosing, as a matter of public policy, between multiculturalism, post-multiculturalism or any possible hybrid lies primarily in the domain of politics rather than law. This means that it is primarily a matter for resolution through pragmatic negotiation between majorities, minorities and the state, rather than by authoritative judicial decision. Third, bearing both these issues in mind, the judicial protection of human rights must assume, at least prima facie, universality in fundamental entitlements over any alleged relativity derived from minority identity, unless and until compelling reasons for the alternative can be identified and justified.

IV.  THE MARGIN OF APPRECIATION DOCTRINE UNDER THE ECHR

The margin of appreciation doctrine is a creation of the judicial institutions at Strasbourg endorsed by numerous decisions of the European Commission of Human Rights and, by the end of the 1990s, by over 700 judgments of the European Court of Human Rights (ECtHR).22 It has also inspired a much more extensive literature than that relating to any other single aspect of the ECHR23 and has spread, unevenly and not without controversy, into some other areas of public international law.24 Most of the academic debate is devoted to describing its complex contours in the Convention landscape, to identifying both fields of application and factors regulating its ‘bandwidth’, and to rendering it more analytically secure and its effects more foreseeable. All commentators, however, agree that no simple formula adequately describes how it works and that, in spite of the mountain of jurisprudence and analysis, its most striking characteristics remain its casuistic, uneven and largely unpredictable nature.

22  A Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford, Oxford University Press, 2012) 3; Editors’ note, ‘The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice’(1998) 19 Human Rights Law Journal 1. 23  For those published in the past decade or so, see, eg, CM Zoethout, ‘Margin of Appreciation, Violation and (in)Compatibility: Why the ECtHR Might Consider Using an Alternative Mode of Adjudication’ (2014) 20 European Public Law 309; Y Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’ in A Føllesdal, B Peters and G Ulfstin (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge, Cambridge University Press, 2013); Legg (n 22); J Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2011) 17 European Law Journal 80; J Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29 Netherlands Quarterly of Human Rights 324; G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705; J A Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’ (2005) 54 International and Comparative Law Quarterly 459; Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp, Intersentia, 2002). 24 Y Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2006) 16 European Journal of International Law 907.

28  Steven Greer The following features are also widely acknowledged. The concept of a ‘margin of appreciation’ first appeared in the context of the Article 15 derogation provision as an analogue to the discretion that national courts permit administrative bodies in administrative law. In addition to Article 15, it has had a high profile in relation to certain Convention rights—particularly the personal freedoms enshrined in Articles 8–11, the anti-discrimination provision in Article 14 and the right to peaceful enjoyment of possessions in Article 1 of Protocol No 1—yet a lower one with respect to others. The key justifications for the doctrine include the fact that national authorities are likely to be in a better position than the Strasbourg institutions to obtain and assess relevant information, that drawing lines between Convention rights, and between Convention rights and legitimate public interests, may involve weighing difficult and controversial political issues rather than merely addressing narrow technical legal ones, and that there may be a range of equally defensible places where such lines could be drawn, each of which may attract support from sections of public opinion in the state concerned, and some of which may be more appropriate in some Member States than in others. For the Court to substitute its own conception of what is required may therefore lack legitimacy and may result in it taking sides in national debates concerning the resolution of human rights dilemmas which are not amenable to any straightforward, much less objective, legal solution. The width of the margin of appreciation will therefore vary according to such factors as the Convention right at issue, its importance for the individual, the activity in question and the extent of, and official justification for, the interference. The degree of scrutiny at Strasbourg will, as a result, range from considerable deference to national authorities on issues such as social and economic policy and national security to more intense review in cases involving criminal procedure, intimate aspects of private life or limitations on the expression of opinion about matters of public importance. Finally, subject to significant exceptions, particularly regarding abortion (considered more fully below), the more a pan-European consensus exists on the relationship between Convention rights and each other, and between a particular Convention right and a specific public interest, the narrower the margin of appreciation is likely to be. However, commentators are also divided over a range of other issues, including whether the margin of appreciation doctrine embraces every type of discretion by national institutions under the Convention or only certain kinds, and whether it pervades the entire document or is restricted to specific provisions. While some critics have argued for its elimination altogether, most maintain that greater clarity, coherence and consistency in its application are required instead. The key task for the ECtHR in relation to the margin of appreciation, which presents both conceptual and constitutional challenges, is interpretive; ‘conceptual’ in the sense that interpreting the ECHR involves defining what Convention rights mean and how they relate to each other and to a range of public interests, and ‘constitutional’ in the sense that the Convention itself provides a constitutional framework, primarily through the principles of interpretation, according

Universalism and Relativism in Human Rights Protection 29 to which this exercise should be conducted. As argued more extensively elsewhere, the Convention’s constitutional principles/principles of interpretation can fruitfully be seen as falling into a hierarchy of primary and secondary categories.25 The three primary constitutional principles, to which the others are subordinate, are: the ‘rights’ principle, which holds that, in a democratic society, Convention rights should be protected by national courts and by the ECtHR through the medium of law; the ‘democracy’ principle, which maintains that, in a democratic society, collective goods/public interests should be pursued by democratically accountable national non-judicial public bodies within a framework of law; and the principle of ‘priority to Convention rights’, which mediates the relationship between the other two by insisting that Convention rights take procedural and evidential but not conclusive substantive priority over the democratic pursuit of the public interest according to the terms of given provisions. The function of the secondary constitutional principles—including the mutually interdependent and particularly high-profile principle of proportionality and the margin of appreciation doctrine—provide a complex web of interconnecting and underpinning support. Amongst other things, this model disciplines the margin of appreciation doctrine in two ways. First, and in spite of what the Court and other commentators may have said to the contrary, the Convention’s primary constitutional principles imply that there is no genuine substantive margin of appreciation at all on the part of national non-judicial institutions as far as the definition of Convention rights or their interface with each other is concerned. This does not, however, exclude the possibility of ‘implementation discretion’, relating, for example, to the mechanics of trial processes or over how adjectives and adverbs such as ‘reasonable’ and ‘promptly’, which appear in various Convention provisions, are understood. Nor does it mean—since these tasks are clearly and inescapably encompassed by the democracy principle—that national non-judicial bodies should renounce attempts to interpret what Convention rights mean or refuse to delineate their boundaries. What it does suggest is that where the definition of a Convention right is disputed, the matter should be resolved authoritatively by national courts and ultimately by the ECtHR, with, ultimately, no genuine margin of appreciation accorded national non-judicial bodies at all. Second, where the exercise of a Convention right and a public interest conflict, the ECtHR’s main responsibility is to ensure that the priority-to-rights principle has been properly observed by national authorities according to the terms of the Convention provision(s) at issue rather than to permit ad hoc balancing by judicial and non-judicial authorities at the national level. While this, of course, also involves balancing, it is of a structured or weighted kind.

25  See S Greer, ‘The Interpretation of the European Convention on Human Rights: Universal Principle or Margin of Appreciation?’ (2010) 3 UCL Human Rights Review 1; and S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) ch 4.

30  Steven Greer Legg maintains that this model is ‘replete with difficulty’ on the grounds that it presumes a difference between defining rights and determining if conduct is compatible with them so defined, that states do in fact have a legitimate role in defining rights to which the ECtHR should be deferential, which is illustrated in particular by abortion, its account of proportionality is incoherent and, in common with other approaches, it ignores ‘second order reasoning’, factors external to the constitutional framework.26 These criticisms can easily be answered as follows. First, the distinction between, on the one hand, defining a right and, on the other, deciding whether conduct is compatible with it thus defined is vital for and fundamental to the Convention system. These are clearly separate exercises, not least because any definition invoked by the ECtHR will already typically have been settled by previous case law and the Court’s main task in any subsequent litigation is therefore to determine how the definition applies to the facts before it. For example, in order to prevent states conveniently bypassing the fair trial provisions of Article 6, the ECtHR decides, according to its own autonomous definition and without deference to national authorities, whether legal proceedings defined nationally as mere administrative infractions or disciplinary offences, nevertheless constitute a ‘criminal charge’.27 Second, if the Court defines such key Convention terms as ‘criminal charge’ for itself, how much more important, as a matter of constitutional principle, is it that defining Convention rights should ultimately be a matter for the Court alone? Yet, as already indicated, this does not mean that national judicial and non-judicial authorities should make no attempt to provide them with enhanced definitional specificity or that the Court should ignore whatever refinements are produced. What it does mean is that national definitions remain provisional until endorsed, rejected or adapted by the Court. Abortion presents a unique case. But, as the ECtHR itself prefers to put it, whether it is consistent with the ECHR is less about defining what the right to life means and more about determining when a life attracting the protection of Article 2 begins.28 Because this is largely a cultural, moral and religious rather than an objective matter, the Strasbourg institutions have granted states wide margins of appreciation in spite of the fact that, subject to certain gestational limits, abortion is available on request in 30 Council of Europe states, in the interests of the mother’s well-being in 35 and on health grounds in 40. Only three states—Malta, San Marino and Andorra— prohibit it in all circumstances, while Ireland permits it only to save the life of the mother.29 Therefore, in spite of this high level of pan-European consensus and provided national law is the result of genuine democratic deliberation, a­ bortion

26 

Legg (n 22) 190–93. Engel v The Netherlands (1979–80) 1 EHRR 647 [82]. 28  See, eg, A, B, C v Ireland (2011) 53 EHRR 429 [186], [223] and [237]. 29  ibid [112]. See also D Fenwick, ‘“Abortion Jurisprudence” at Strasbourg: Deferential, Avoidant and Normatively Neutral?’ (2014) 34 Legal Studies 214; E Wicks, ‘A, B, C v Ireland: Abortion Law under the European Convention on Human Rights’ (2011) 11 Human Rights Law Review 556. 27 

Universalism and Relativism in Human Rights Protection 31 is neither prohibited nor mandated, but merely permitted by Articles 2 (the right to life) and 8 (the right to respect for private and family life, home and correspondence).30 Third, as Yutaka Arai-Takahashi acknowledges,31 the model presented here shows a fully coherent appreciation of the mutual dependence of the margin of appreciation upon the principle of proportionality. This is because, unlike Legg’s or other alternatives, their respective roles and functions are set in a much more explicit and robust constitutional framework which, as Murphy notes, embodies a ‘longing for the form of constitutional justice offered by the US Supreme Court and German Bundesverfassungsgericht’.32 Fourth, Legg strangely regards ‘democratic legitimacy’ as an external factor when, in fact, it derives from one of the Convention’s primary constitutional principles.33 Finally, as the second paragraph of this section clearly indicates, and contrary to Legg’s criticism, the margin of appreciation is not only manifestly open to ‘second order reasoning’—it could not function without it.

V.  CULTURE AND THE MARGIN OF APPRECIATION

Since the terms ‘culture’ and ‘cultural’ do not appear anywhere in the ECHR, there is no express right to culture as such, nor can any Convention right be expressly restricted on this basis. Nevertheless, culture is relevant to the ECHR in three main ways. First, the Convention is one of the many products of the transition from the medieval hierarchy of status-related obligations to the modern idea of universal, equal human rights, which is a deeply cultural as well as an ideological, moral, political, socio-economic, legal and intellectual enterprise. Second, in order to flourish, the ECHR requires, in common with other human rights instruments, a ‘rights culture’, that is, a set of understandings about basic entitlements shared by public officials and publics throughout Europe, although not necessarily without contestation over details. Third, the interpretation of ECHR rights might directly or indirectly require the invocation of cultural assumptions of various kinds, some of which may be uniform across Europe, while others may be highly specific to certain states or peoples. Culture is, for example, indirectly involved in determining what constitutes the kind of treatment banned by Articles 3 and 4—respectively the prohibitions against torture, inhuman or degrading treatment or punishment, and against slavery and servitude. But here the Strasbourg institutions have insisted upon pan-European standards and have not permitted national margins of appreciation referenced to

30 

A, B and C v Ireland (2010) 53 EHRR 429; H v Norway (1992) 73 DR 155. Yutaka Arai-Takahashi (n 23) 82, 84–87. 32 C Murphy, ‘Publication Review: The European Convention on Human Rights: Achievements, Problems and Prospects by Steven Greer’ [2007] Public Law 851. 33  Legg (n 22) 1–2, 219–20. 31 

32  Steven Greer this or any other criterion.34 The margins of appreciation with respect to Articles 5 and 6—the rights not to be arbitrarily arrested/detained and to a fair trial—are not culturally specific at all, but apply only to inherently indeterminate terms such as ‘reasonable’ and ‘prompt’. Nor is there any margin of appreciation, cultural or otherwise, with respect to Article 7—the right not to have conduct retrospectively criminalised or subject to a heavier penalty than at the time it occurred.35 A right to cultural practice is implied by Articles 8–11—the rights to respect for private and family life, home and correspondence, to freedom of thought, conscience and religion, and to freedom of expression, association and assembly. In addition to abortion (considered above), it is in these contexts, with respect both to the scope of and limits to the relevant rights, that issues of lifestyle, culture and belief have arisen most prominently and most controversially in the Convention system. The Court has, for example, refused to permit national or regional homophobic cultures to obstruct the pan-European decriminalisation of private, consensual, gay, adult sex because sexuality is so integral to personal well-being as protected by Article 8 (the right to respect for private and family life, home and correspondence).36 It has, however, held that Articles 12 (the right to marry), 8 and 14 (the right not to be discriminated against) neither mandate nor prohibit gay marriage, an issue less central to the personal well-being of gay people than avoiding the criminalisation of their sex lives.37 The extent to which gay marriage is available in any given state is therefore likely to depend upon how national law reflects the specific cultural context. The Court has also decided—on account of Italy’s historic Catholic culture and provided there is evidence of religious pluralism and no evidence of indoctrination—that non-Catholics do not have the right under Articles 9 (the right to freedom of thought, conscience and religion) or 14, or under Article 2 of Protocol No 1 (the right of parents to ensure their children are taught in conformity with their own religious and philosophical convictions) to have crucifixes removed from the walls of Italian state schools.38 Bans on traditional Islamic female headwear have also been upheld, according to the margin of appreciation doctrine applied for different reasons and in different contexts, in Turkey, Switzerland and France, though not always directly on cultural grounds. In Leyla Şahin v Turkey, the ECtHR declined to condemn the banning of headscarves in institutions of higher education as a violation of Articles 8–10, 14 or Article 2 of Protocol No 1 on the grounds that, given the state’s margin of appreciation, the balance struck between the various interests at stake—including protecting the rights and freedoms of others, avoiding civil unrest, maintaining public order and defending pluralism—had not been 34  D Harris et al, Harris, O’Boyle & Warbrick: Law of the European Convention on Human Rights (3rd edn, Oxford, Oxford University Press, 2014) 236, 279–80. 35  ibid, ch 10. 36  Dudgeon v UK (1982) 4 EHRR 149; Modinos v Cyprus (1993) 16 EHRR 485; Norris v Ireland (1991) 13 EHRR 186. 37  Schalk and Kopf v Austria (2010) 53 EHRR 683. 38  Lautsi v Italy (2012) 54 EHRR 60.

Universalism and Relativism in Human Rights Protection 33 disproportionate or unfair in all the circumstances. While the judgments of the Chamber and the Grand Chamber could have been more tightly reasoned, there is no doubt that—given its connection with political Islam—the key issue concerned the threat that the Turkish authorities considered permitting the headscarf in higher education could pose to the stability of the secular, democratic, pluralist state, upon which the rights and freedoms of others depends, rather than merely upon its symbolic incompatibility with the secular national political culture as such, much less with the national Islamic societal culture.39 However, it was observed that this choice might reflect certain cultural preferences over others.40 The ECtHR has also decided that, because of the need to protect the right of state school pupils to be taught in a denominationally neutral context in order to avoid the risk of subtle proselytisation—especially where the children in question were between four and eight years old—and to affirm the principle of gender equality, a Muslim primary school teacher in Switzerland was not improperly dismissed from her job for refusing to remove her headscarf in class.41 A blanket ban on wearing the Islamic face veil in public was also upheld by the ECtHR in SAS v France.42 Taking Articles 8–10 separately and together with Article 14, the Grand Chamber rejected, on the grounds of disproportionality, the claim that this was necessary in the interests of public safety. But it concluded that the ban could nevertheless be justified by reference to the principle of ‘living together’ derived from the ‘rights and freedoms of others’ exception expressly provided by the second paragraphs of Articles 8–10.43 Affirming that the application of this principle lies within a state’s margin of appreciation, it was held that, provided the consequences of non-compliance are not disproportionate, each nation is entitled to determine for itself, according to its own democratic and legal processes, whether to permit or prohibit the Islamic face veil in public. The judgment recognises, although arguably not as clearly as it might, that culture plays a complex role in this process. On the one hand, wearing the Islamic face veil in public expresses a religious and therefore a cultural preference (but not the observance of a religious obligation), which falls within the scope of Articles 8 and 9. But, on the other hand, the Court held that an objection by mainstream national society on the grounds that this collides with the cultural, political and legal values of gender equality and human dignity is not covered by any of the express exceptions to these provisions. However, face-to-face interaction in public—itself a cultural value—may plausibly be entailed by the rights and freedoms of others in certain but not necessarily all national contexts, arguably without the need to invoke the notion of ‘living together’ at all. In such circumstances, other more transient and instrumental kinds of face covering by, for example, scarves in winter would 39  Leyla Şahin v Turkey (2005) 41 EHRR 109 [99]–[109] (Chamber); Leyla Şahin v Turkey (2007) 44 EHRR 99 [110]–[123] (Grand Chamber). 40  ibid (Chamber) [102]; ibid (Grand Chamber) [109]. 41  Dahlab v Switzerland, 2001-V DA, 15 February 2001. 42  SAS v France (2015) 60 EHRR 244. 43  ibid [121], [142].

34  Steven Greer not therefore be banned. So, in effect, the Court in SAS refused to condemn the subordination of the cultural preference of the minority of Muslim women in France who want to wear the Islamic face veil in public to the clearly expressed cultural preference of mainstream French society not to tolerate it. In the ECHR context, national and even regional cultures have also been indirectly recognised, also via the ‘rights and freedoms of others’ exception (though not always convincingly), as limitations upon the right to freedom of expression under Article 10. This has particularly been the case in the context of alleged obscenity, notwithstanding the iconic dictum in Handyside v UK that this provision protects the expression of views which ‘offend, shock or disturb’.44 Provided that the right to fair trial under Article 6 and the right to an effective remedy under Article 13 are safeguarded, ‘legal culture and tradition’ may also justify differences in the ways in which protection for either of these rights is delivered.45 National culture may also be relevant to domestic legal arrangements for marriage under Article 12—for example, minimum age.46 While ‘culture’ is not expressly listed as a ground of discrimination prohibited under Article 14, it might conceivably arise under ‘association with a national minority … birth or other status’. Its elusiveness, elasticity and entanglement with many other interests protected by the Convention—for example, race, nationality, ethnicity, religion, belief, private and family life, education, expression, assembly and association—may be among the reasons for the lack of a clearly discernible conclusion about its relationship with discrimination in the Strasbourg jurisprudence. However, while the Convention clearly does not protect those cultures that the Court deems hostile or antithetical to its core values, not all cultures consistent with it are equally protected either. It has been held, for example, that differential treatment motivated by the promotion of the traditional family,47 national languages48 and, as already noted, heterosexual marriage49 does not necessarily amount to discrimination under Article 14. Not surprisingly, a great deal will depend upon context, proportionality and how convincing the official justifications for any differential treatment are.

VI. CONCLUSION

The debate about the universality/relativity of human rights in Europe has three principal dimensions. It is anchored, first, in the now widely accepted realisation 44  Handyside v UK (1979–80) 1 EHRR 737 [49]; see also Otto-Preminger-Institut v Austria (1995) 19 EHRR 34; Müller v Switzerland (1991) 13 EHRR 212. 45  Harris et al (n 34) 371, 766. 46  ibid 755. 47  Marckx v Belgium (1979–80) 2 EHRR 330. 48  Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1979–80) 1 EHRR 252. 49  Schalk and Kopf v Austria (n 37).

Universalism and Relativism in Human Rights Protection 35 that the controversy over the universality/relativity of human rights in general is ultimately irresolvable because no knock-down arguments are waiting to be deployed and no discoveries are to be made that will conclusively settle the matter. Most commentators now accept that the most profitable and practical territory lies in the middle ground—that is, in the acknowledgement that human rights are ‘universal’ in some senses, particularly as abstract individual entitlements, and ‘relative’ in others, particularly in terms of the specific implications they have in concrete circumstances at the national level. The most urgent real-world issue, in Europe and elsewhere, is therefore to identify in what ways the universals may legitimately apply differently in diverse contexts and which institutions should be responsible for deciding how and when this should be the case. The second dimension concerns the relationship between human rights and multiculturalism in European states. The official recognition of collective minority rights, for example to state-funded faith schools, is primarily a political rather than a judicial matter to be resolved through dialogue and negotiation rather than by authoritative judicial decision. By contrast, determining the legal rights of individual members of minority groups is essentially a judicial responsibility involving the interpretation and application of universal human rights found in the ECHR and national constitutional rights documents, coupled with the right not to be discriminated against on the basis of aspects of minority identity. National cultures have featured in the jurisprudence of the ECtHR in several ways. The Court has, for example, insisted upon the pan-European decriminalisation of private, consensual, gay, adult sex in spite of the strength of homophobic cultures in specific states or regions. But it has not yet condemned any state for failing to recognise gay marriage. However, the invocation of national culture has had more complex effects with respect to alleged violations of the right to freedom of thought, conscience and religion, including alleged discrimination on this basis. But, apart from some limited exceptions, the ECtHR is unlikely to determine the relationship between rights, and between rights and public interests, by invoking culture at all. On the assumption that they are generally in a better position than an international institution to do so, this is much more likely to hinge upon the question of whether or not national judicial and non-judicial authorities have chosen between a range of more or less equally ECHR-compliant alternatives. The third dimension concerns the role played by the margin of appreciation in managing the relationship between universality and relativity. In a Europe with continent-wide institutions governed by constitutional pluralism, the margin of appreciation is integral and essential to the Convention’s interpretive principles. It will never be brought under the kind of formal predictable control advocated by some commentators because the interpretation of the Convention is not always an objective matter. In other words, there will be scope for substantial differences of informed professional opinion, particularly in the most controversial cases, regarding what Convention rights mean and how they should apply in different

36  Steven Greer contexts. The most that can be hoped for is that the margin of appreciation can be confined within acceptable limits and best achieved by appreciating its subordination to the Convention’s primary constitutional principles and also its relationship with the secondary principles, particularly proportionality. In this way, Convention rights are, and should be, both universal and capable of being interpreted and applied differently in varying national contexts.

2 On the Varieties of Universalism in Human Rights Discourse BEN GOLDER

Without a universalism of sorts—the idea of human rights, for instance— a truly democratic society is impossible. Ernesto Laclau

I. INTRODUCTION: EUROPE, HUMAN RIGHTS AND THE UNIVERSAL

A

S THE CRITICAL scholarship on Eurocentrism and Orientalism has taught (and had cause to constantly remind) us, ‘Europe’ has long been a privileged location for the universal; indeed, even its exemplary instance.1 In the introduction to their Europe beyond Universalism and Particularism, for example, Susanna Lindberg, Mika Ojakangas and Sergei Prozorov argue that: The tension between universalism and particularism is particularly important in the case of Europe, which, while being a particular geographical, cultural, and political entity, is also a proper name for an aspiration towards universality and the political project of its construction. Universalism is a European invention.2

Today one of the most popular, and popularly contested, means for (as Lindberg, Ojakangas and Prozorov might have it) politically projecting the universal is the discourse of human rights. The conceptual importance of universalism to that discourse is difficult to overstate; indeed, it is definitive of it in theory, if not always

1  See generally John M Hobson, The Eastern Origins of Western Civilisation (Cambridge, Cambridge University Press, 2004) (especially ch 1). On international law, see Arnulf Becker Lorca, ‘Eurocentrism in the History of International Law’ in Bardo Fassbender and Anne Peters (eds), Oxford Handbook of the History of International Law (Oxford, Oxford University Press, 2012). 2  Susanna Lindberg, Mika Ojakangas and Sergei Prozorov, ‘Introduction: Transcending Europe’ in Susanna Lindberg, Mika Ojakangas and Sergei Prozorov (eds), Europe beyond Universalism and ­Particularism (Basingstoke, Palgrave Macmillan, 2014) 2. For a contrary account that stresses the ­orientation to universality in a range of different human civilisations, see Shmuel N. Eistenstadt, ‘The Axial Age: The Emergence of Transcendental Visions and the Rise of Clerics’ (1982) 23(2) ­European Journal of Sociology 294.

38  Ben Golder and exactly in practice. In contrast to those ephemeral constructions of national legislatures, human rights are the rights to which we are entitled not by the particularistic happenstance of citizenship, but rather because of our membership of a much more encompassing, if diffuse, collectivity: humanity as such. Human rights, as many accounts today either celebrate or regret, are the pre-eminent universalist discourse of our times—a global lingua franca of politics that transcends the parochial concerns of ethnicity and nationalism.3 Were Europe, universalism and human rights actually to exist in such a neat relationship of reciprocal entailment and institutional construction, one might expect the subject matter of the present collection (namely, European human rights law) to need little conceptual elaboration. Happily for the reader this proves not to be the case. As a way to begin to explore the tensions at the heart of this connection between Europe, universalism and human rights, let us consider the encomium to the European Court of Human Rights that opens Eyal Benvenisti’s 1999 critique of the margin of appreciation doctrine: Judgments of the European Court of Human Rights … resonate in numerous national decisions concerning human rights issues. Their jurisprudence has become an indelible source of inspiration for judges in national courts around the globe … [and] enlightens not only national judges but also judges and committee members of the other international human rights organs. The judicial output of the ECHR and the other i­ nternational bodies carries the promise of setting universal standards for the protection and ­promotion of human rights.4

Here the European Court is proposed very much as a vanguard for the universal— as a source of enlightenment, inspiration and instruction for benighted judges labouring in national domestic contexts (but also, perhaps, for their less developed regional human rights brethren resident in ‘other organs’). If international human rights law is here imagined as a transcendent source of normative value, then the European Court is very much both in touch with that source and at the forefront of its dispersion and realisation in the world. However, there is a problem. That problem, tragically, emanates from the heart of Europe itself. Encomium rapidly slides into lament: These universal aspirations are, to a large extent, compromised by the doctrine of the margin of appreciation … Margin of appreciation, with its principled recognition of moral relativism, is at odds with the concept of the universality of human rights. If applied liberally, this doctrine can undermine seriously the promise of international enforcement of human rights that overcomes national policies … and [indeed] the influential European jurisprudence, with its liberal use of the doctrine, may compromise the

3  Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, Princeton University Press, 2001) 53; Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Oxford, Hart Publishing, 2000) 1. 4 Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998–99) 31 New York University Journal of International Law and Politics 843, 843.

Varieties of Universalism in Human Rights Discourse 39 global efforts of the other human rights bodies and of national judges to set universal standards.5

The European Court now emerges as that which, through its ill-considered and culturally relativist doctrine of the margin of appreciation, threatens the universality of human rights. In seeking to give an internal accommodation to Member States in their interpretation and application of the European Convention, the Court simultaneously endangers the internal cohesion and self-identity of ‘Europe’ (thus troubling its aspiration to universality)6 and also that crucial transnational juridical process of enlightenment, inspiration and instruction that the European Court was particularly well-placed to provide. In all, the slide from paragon of universality to cultural relativist pariah is achieved in a matter of several damning paragraphs. Other scholars have critiqued the European Court’s margin of appreciation doctrine from a number of perspectives, complaining, inter alia, of the violence that it does to the rule of law, of its inconsistency, indeterminacy and ­incoherence, and of its not having a sufficiently developed normative rationale.7 Many ­others (some of whom are featured in the present volume) have sought to present a countervailing conception of the margin of appreciation that focuses on its affirmative normative role in mediating value pluralism and indeed, in the process, of rearticulating understandings of universalism.8 The present chapter makes contact with that latter endeavour, but it seeks to do so by asking a set of logically prior questions (logically prior, that is, to questions about institutional design or dialogue, judicial interpretation and so forth). The set of questions that occupy me in this chapter revolve around what notions of the universal we have in mind when we discuss the margin of appreciation as an example of the negotiation between the universal (norms of human rights) and the particular (the ways in which they are implemented culturally or in nation state contexts)—and whether there are other ways of thinking the universal in human rights law (and, in turn, of rethinking the margin of appreciation). To take Benvenisti’s opening statements as my starting point and taking them in turn as characteristic of a certain predominant

5 

ibid 843–45. some are more universal than others. Lord Hoffmann, writing of the UK, observed: ‘When we joined, indeed, took the lead in the negotiation of the European Convention, it was not because we thought it would affect our own law, but because we thought it right to set an example for others and to help to ensure that all the Member States respected those basic human rights which were not culturally determined but reflected our common humanity.’ Rt Hon Lord Hoffmann, ‘Human Rights and the House of Lords’ (1999) 62(2) Modern Law Review 159. 7  See, for example, Jeffrey A Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2004–05) 11(1) Columbia Journal of European Law 113; Cora S Feingold, ‘The Doctrine of Margin of Appreciation and the European Convention on Human Rights’ (1977) 53(1) Notre Dame Law Review 90; George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford Journal of Legal Studies 705. 8 See Neil Walker, ‘Universalism and Particularism in Human Rights: Trade-off or Productive Tension?’ in David Kinley, Wojciech Sadurski and Kevin Walton (eds) Human Rights: Old Problems, New Possibilities (Cheltenham, Edward Elgar, 2013). 6  Inevitably,

40  Ben Golder understanding in much legal and political theoretical literature, we can say that often the relationship between the universal and the particular is figured in a top-down or transcendent way. According to this orthodox understanding, the universal simply represents a set of timeless and non-place-bound normative standards that particular entities seek to implement (or, perhaps, undermine!). In the international relations scholar Jack Donnelly’s oft-cited formulation, human rights ‘are the rights one has simply because one is a human being … are held “universally” by all human beings … [and a]s the highest moral rights … take priority over other moral, legal, and political claims’.9 Here the universality of human rights is a given and is pitched as ‘higher’ than and as determinative of the particularistic moral, legal and political claims articulated in domestic and regional locations. If this is a common understanding, shared not only by Benvenisti and Donnelly but also by many other scholars who frame the margin of appreciation in terms of a culturally relativist challenge to the universal, it is by no means the only way to understand the relationship between the universal and the particular. Indeed, we could say that it is itself merely a particular way to comprehend the universal. According to other conceptualisations of the universal, the margin of appreciation doctrine emerges in a very different normative and political light, and it is the intention of the present chapter to survey and reflect upon some of those conceptualisations. In the next section and the ones that follow, I discuss several different iterations of the universal in human rights, each of which indexes a particular relationship between the universal and the particular, and each of which gives rise to different political questions and approaches to human rights. I cannot hope to exhaust the topic of universalism (indeed, a key theme of what follows will precisely be the constitutive—and politically productive—inexhaustibility of the category), but hope instead to survey some of the conceptual terrain on which its meaning has been contested. My intention is to begin to clarify what we mean when we make the kinds of performative claim that Donnelly makes (above) about the universality of human rights and, relatedly, to think through the political and legal stakes of these conceptualisations (in other words, I hope, ‘simply’, to show how the question of the universal is really not that simple after all). In surveying this terrain, I will take as my guide, among others, some ideas of the political theorist Ernesto Laclau, especially his work on hegemony, emancipation and universality. This body of scholarship is helpful because it allows us to navigate a series of conceptions of universalism and particularism as well as explaining the limits of a politics of pure particularism (or, perhaps, in the idiom of human rights debates, a slide into self-defeating cultural relativism). In explicating the limits of particularism, Laclau not only illuminates some of the reasons behind what I will call a ‘return to the universal’ in contemporary human rights thinking, but himself proposes a particularly influential brand of universalism. It is with 9  Jack Donnelly, Universal Human Rights in Theory and Practice (2nd edn, Ithaca, Cornell University Press, 2003) 1.

Varieties of Universalism in Human Rights Discourse 41 this brand of universalism (a hegemonic, or ‘empty’, universalism, which has been persuasive for a number of political, legal and democratic theorists of late) that my own survey in this chapter will conclude. But let me start that survey now by considering the kind of robust, top-down or transcendent conception of human rights universalism (we might equally call it a modernist conception of human rights universalism)10 that informs much of the normative criticism of the margin of appreciation.

II.  MODERNIST UNIVERSALISM AND ITS CRITICS

Ernesto Laclau helpfully identifies the logic of incarnation that undergirds this modernist conception of universality I have been discussing. In his 1996 collection of essays, Emancipation(s), Laclau schematises four possible conceptions of the relationship between the particular and the universal, and I want to use these conceptions to structure my own discussion in the present chapter. The first two are immediately relevant and I shall return to the third and fourth later on. The first conception Laclau identifies is really a case of non-relationship between the universal and particular. According to this conception, there is a strict ‘dividing line between the universal and the particular’ and yet ‘the pole of the universal is entirely graspable by reason’. Laclau writes: ‘In that case, there is no possible mediation between universality and particularity: the particular can only corrupt the universal. We are in the terrain of classical ancient philosophy’ (emphasis added) (such as Plato’s metaphysical theory of forms).11 Laclau’s second conception is drawn from the history of Christianity, wherein universality is not accessible to human reason, but rather occurs, opaquely and unpredictably, through revelation. Because in Christianity, as Laclau explains, the universal ‘has to realize itself in a finite reality which has no common measure with [it], the relation between the two orders [of finite human particularity and God-given universality] also has to be an opaque and incomprehensible one. This type of relation was called ­incarnation, its distinctive feature being that between the universal and the body incarnating it there is no rational connection whatsoever’ (emphasis added).12 In this theological conception of incarnation, it is God alone who mediates between the realms of the universal and the particular. Over time, this theo-logic of incarnation becomes secularised. Laclau observes: A subtle logic destined to have a profound influence on our intellectual tradition was started in this way: that of the privileged agent of history, the agent whose particular body 10  See Dianne Otto, ‘Rethinking the “Universality” of Human Rights Law’ (1997) 29(1) Columbia Human Rights Law Review 1. 11  Ernesto Laclau, Emancipations(s) (London, Verso, 1996) 22. This book is a collection of previously published essays. The essay in which Laclau lays out his four different models is entitled ­‘Universalism, Particularism and the Question of Identity’ (20–35), but my own, later, elaboration of his fourth model in this chapter is culled from other essays in this volume. 12  ibid 23.

42  Ben Golder was the expression of a universality transcending it. The modern idea of a ‘universal class’ and the various forms of Eurocentrism are nothing but the distant historical effects of the logic of incarnation. (Emphasis in original)13

Laclau goes on to argue that modernist versions of this originally theological idea are not simply echoes and repetitions of a theological inheritance, but in fact represent a reformulation and a radicalisation of them. A thoroughgoing secular version of this theo-logic, after all, calls both for the elimination of God and for the idea that the universal is incomprehensible to human reason. Neither proposition is acceptable to a secular, rational modernity. Accordingly, we move from a conception wherein the particular body is, as Laclau puts it in the quotation above, ‘the [rationally incomprehensible] expression of a universality transcending it’, to a starker, immanent, less mediated conception. He encapsulates it thus: ‘We have to postulate a body which is, in and of itself, the universal.’14 With this, we arrive at a familiar (modernist) history of Eurocentrism, colonialism and imperialism. ‘The universal had found its own body, but this was still the body of a certain particularity—European culture of the nineteenth century. So, European culture was a particular one, and at the same time the expression—no longer the incarnation—of universal human essence’, which meant that ‘European imperialist expansion had to be presented in terms of a universal, civilizing function, modernization and so forth’, to which resistances were presented ‘not as struggles between particular identities and cultures, but as part of an all-embracing and epochal struggle between universality and particularisms—the notion of peoples without history expressing precisely their incapacity to represent the universal’.15 The (European) particular thus, simply, becomes the universal. The processes by which particular cultural or political formations manage to arrogate to themselves the position of the universal are exemplified in a range of historical and contemporary examples, both within and without the place called ‘Europe’. To take one recurring example from within the heart of ‘old Europe’ (but one, nevertheless, with globalising dimensions), consider l’affaire du foulard and the putative ­conflict that it indexes between the particularistic demands of religious observance ­(particularly, the wearing of religious clothing) and the universalistic secularism of the French public sphere (its much vaunted laïcité). The orthodox framing of this issue rests precisely upon the presumed particularity (read: opacity) of the individual or group’s religious expression as against the transparent, unmarked and inclusive quality (that is, its orientation to the universal) of the European public sphere. Of course, as Peter G. Danchin aptly notes, the universalism of the public sphere is a highly particular historical achievement, in which ‘[s]o-called “JudeoChristian values” will remain as the historical and conceptual background—the

13 ibid. 14 ibid. 15 

ibid 24.

Varieties of Universalism in Human Rights Discourse 43 now invisible baseline—for France’s secular public sphere and will contribute to shaping a uniquely French form of liberal nationalism’.16 Once a certain political or cultural formation manages such a feat (that is, to install as universal, and thence invisibilise and forget its particularity) then other traditions are cast in the position of having either to reject these supposed values (in the name of their own particularism, tradition, cultural purity or difference) or to emulate, assimilate and insert themselves into a putatively universal history not of their own writing. It is hence unsurprising that so much critical energy has been expended in debunking claims to encapsulate the universal and thereby to expose the ways in which it is nothing other than a parochial particular masquerading as a universal standard for the whole of humanity. This critical exposure of the non-universality of the universal has been extraordinarily powerful and politically productive. It is safe to say that the old, modernist, universal of Europe is in increasingly bad odour—and has been for some time now. ‘The dismantling of the universal’, writes Naomi Schor, ‘is widely considered one of the founding gestures of twentieth-century thought’,17 and this dismantling has helped to expose the diverse ways in which Western knowledges have rested upon racially and sexually exclusionary grounds and operated in the service of colonialist, imperialist and patriarchal political projects. And yet when this critique of the ‘false universalism’ of the West,18 or, in Cornel West’s terms, the ‘glib pseudouniversalisms’ of modernity,19 is invoked, it carries with it a logical reliance on the idea of a ‘true’ universalism lying beyond the particular instance that merely masquerades as the universal.20 For many critics operating in this register, it is insufficient simply to point to the non-coincidence of European values with the universal. Rather, this clearing away of the European inheritance of, say, international law or of human rights, is but a necessary precondition to the more properly reconstructive task of articulating a truly, properly, universal regime. For one recent critic of human rights in this vein, the exposure of the Eurocentric foundations of modern and contemporary human rights universalism does not amount to ‘a wholesale rejection of the idea of human rights’ but merely constitutes a necessary step along the way to ‘bring[ing] about true universalization’.21 In order to ‘construct a truly universal project’,22 a genuine cross-cultural dialogue that would push at the l­ imits

16  Peter G Danchin, ‘Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law’ (2008) 33(1) Yale Journal of International Law 1, 25. 17  Naomi Schor, ‘French Feminism is a Universalism’ (1995) 7(1) Differences 15, 15. 18  ibid 21. 19  Cornel West, ‘A Matter of Life and Death’ (1992) 61 October 20, 22. 20 Martti Koskkeniemi, ‘International Law in Europe: Between Tradition and Renewal’ (2005) 16 European Journal of International Law 113, 118 makes a similar point. 21 Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, University of ­Pennsylvania Press, 2008) 3. 22 Makau Mutua, ‘Change in the Human Rights Universe’ (2007) 20 Harvard Human Rights Journal 3, 4.

44  Ben Golder of (undo even) Eurocentric conceptions of human rights would be needed, or, what he calls suggestively the ‘reformation, reconstruction, and multiculturalization of human rights’.23 Further invocations of true, genuine, more inclusive, cross-cultural universalities could doubtless be adduced,24 but my more limited point here is simply to observe that the appeal of the universal outlives any given exposure of its particularity (indeed, perhaps, is only heightened and intensified by it). To show why universalism is making something of a return (or is always already doing so) we need to see why the resort to a politics of pure particularism is a self-defeating move. Laclau, again, proves an instructive guide.

III.  THE LIMITS OF PARTICULARISM AND THE RETURNS OF THE UNIVERSAL

The third conception that Laclau offers of relations between the particular and the universal is one of pure particularism wherein the very possibility of an appeal to universal values beyond the limits of any given particular is withdrawn. This conception provides the social and political background to Laclau’s own theorising. He observes: ‘If we wanted briefly to characterize the distinctive features of the first half of the 1990s, I would say that they are to be found in the rebellion of various particularisms—ethnic, racial, national and sexual—against the totalizing ideologies which dominated the horizon of politics in the preceding decades.’25 The spectre conjured up by this ‘proliferation of particularisms’ is that the universal is ‘increasingly put aside as an old-fashioned totalitarian dream’.26 While politically sympathetic in many respects to the social and political movements of the 1990s—the rebellion of racial, ethnic and sexual minorities; claims of cultural difference and multiculturalism; movements for national self-determination—and their critique of totalising, or modernist, fantasies of universal closure, Laclau worries about the utter evacuation of the universal implied by the turn to particularism. And so he offers two concise critiques of the logic of pure particularism. ‘In the first place’, he argues, ‘the assertion of pure particularism, independently of any content and of the appeal to a universality transcending it, is a self-defeating enterprise’. This is because if the ‘only accepted normative p ­ rinciple’ is the defence of particulars (cultural, religious, ethnic etc), then one must accept 23  Mutua (n 21) 3. In formulating his conception of ‘multiculturalization’, Mutua is much i­ nfluenced by the writings of the Islamic and cross-cultural scholar of human rights, Abdullahi Ahmed An-Na’im. See the latter’s ‘Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, or Degrading Punishment’ in AA An-Na’im (ed), Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Philadelphia, University of Pennsylvania Press, 1995). 24  For a critique of Mutua and related projects, see Ben Golder, ‘Beyond Redemption?: ­Problematizing the Critique of Human Rights in Contemporary International Legal Thought’ (2014) 2(1) London Review of International Law 77. 25  Laclau (n 11) vii. 26  ibid 26.

Varieties of Universalism in Human Rights Discourse 45 the claims of self-determination of any and all groups (even those cast in racist, discriminatory or reactionary ways). If and when such claims and community practices clash, there is a necessary appeal to some general principle to resolve the tension. ‘In actual fact’, he concludes, ‘there is no particularism which does not make appeal to such principles in the construction of its own identity’.27 His second critique is more pointed and polemic. Here he argues that if one grants the hypothesis of a pre-established harmony between different particulars, then the identity of those particulars have to be understood as ‘purely differential and relational; so it presupposes not only the presence of all the other identities but also the total ground which constitutes the differences as differences’. ‘Even worse’, he continues, ‘we know … that each group is not only different from the others but constitutes in many cases such difference on the basis of the exclusion and subordination of other groups.’ This, he says, ultimately leads to the logic of ‘separate development’.28 Without some orienting horizon, the defender of particularism is placed in, at the very least, a difficult and disabling position. And yet if the old, modernist dream of universality has been thoroughly exposed (as a particularistic façade) and the post-Cold War explosion of new social movements, identity politics and movements for national self-determination carry in their wake the dangers of relativism, xenophobia and, ultimately, a form of particularistic totalitarianism, what is the proper critical response to this dilemma of contemporary politics? The answer, unsurprisingly, seems to be a re-examination of the universal in critical thought and radical political practice. ‘The past fifteen years have witnessed a dramatic return of universalism’, wrote Domna Stanton in 2007.29 For Linda Zerilli, writing of universalism in the late 1990s, ‘it appears that, in the view of some critics, we are witnessing a reevaluation of its [above-mentioned] dismantling in twentieth-century thought’.30 For both these commentators, however, this late twentieth- and early twenty-first-­century return of the universal does not amount to a simple retrieval of the hitherto impugned modernist universal, but rather represents a more complex rethinking of the universal itself (and of what we mean by the very relationship between a universal and a particular). This rethinking helps us to approach the margin of appreciation doctrine more productively—not, as per received critiques, as a particularistic restraint upon the properly universalistic remit of the European Court of Human Rights, but as a forum for the negotiation of the universal and the particular. Laclau, whose work has been justly influential in human rights theorising and to which I will return again shortly, is just one of a number of thinkers trying to renegotiate the terms of the universal and the particular. Common to each of their varied efforts is an acceptance of a distinction between, in the terms 27 ibid. 28 

ibid 27. Domna C Stanton, ‘Top-down, Bottom-up, Horizontally: Resignifying the Universal in Human Rights Discourse’ in Elizabeth Swanson Goldberg and Alexandra Schultheis Moore (eds), Theoretical Perspectives on Human Rights and Literature (New York, Routledge, 2012). 30  Linda MG Zerilli, ‘This Universalism Which is Not One’ (1998) 28(2) Diacritics 3, 3. 29 

46  Ben Golder of the philosopher Colin Koopman, universalism (as static) and universalisability (as processual, as potential): These two inflections lead to two radically different conceptions of universality. On the one hand is a classical ideal of universality as a universalism that carries necessity in its train. On the other hand is a more contemporary conception of universality as universalizability in the sense of a process of universalization that is always under way and yet never complete. (Emphasis in original)31

According to this latter understanding, the universal emerges as unfinished, incomplete and open to further contestation and redefinition on behalf of multiple particulars. This is a more mobile, more amenable, more contingent and ultimately more palatable universal for the contemporary age. Indeed, in the context of debates around the universality of human rights, it has been a very productive way in which to reintroduce some normative medium so as to attenuate the problems of particularism without committing the same mistakes of the singular, modernist universal. Koopman’s distinction helps us grasp the basic sense of a universal which is not closed off to political and legal contestation on behalf of excluded particulars, but there are yet multiple ways in which once could understand, and practise, this newfound mobility of the universal in terms of human rights. One common way can be found in the work of the historian Lynn Hunt, most clearly in her 2007 book, Inventing Human Rights. On the account offered by Hunt, we might say that the universal content of human rights is temporalised so as to admit of particular contestation and renewal. Hunt shows how the Rights of Man, putatively universal and yet racially, sexually and religiously exclusionary in their contemplated (and actual) application, come to be progressively taken up and claimed by those they excluded. Hunt’s strategy to reconcile the putative universality of the Rights of Man with their practically limited and particular application is to suggest that, as the historical experience of the French Revolution and its aftermath demonstrates, ‘human rights have an inner logic’. According to this logic, once a declaration of universal rights is made, then sooner or later the particular groups not envisioned (or actively excluded) in its constitution as universal come to insist on their place in the universal. Hunt refers to this logic throughout the book as a kind of ‘cascade’,32 and the assumption is that the universal remit of rights is gradually expanded over time. This progressive cascade operates according to what she calls a ‘kind of conceivability or thinkability scale’: No one knew in advance which groups were going to come up, or what the resolution of their status would be. But sooner or later, it became clear that granting rights to some groups (Protestants, for example) was more easily imagined than granting them to 31  Colin Koopman, Genealogy as Critique: Foucault and the Problems of Modernity (Bloomington, Indiana University Press, 2013) 229–30. See also James D Ingram, ‘Universalism/Universalization’ in Michael Gibbons (ed), The Encyclopedia of Political Thought (New York, Wiley, 2015). 32  Lynn Hunt, Inventing Human Rights: A History (New York, Norton, 2007) 147.

Varieties of Universalism in Human Rights Discourse 47 ­ thers (women). The logic of the process determined that as soon as a highly conceivable o group came up for discussion (propertied males, Protestants), those in the same kind of category but located lower on the conceivability scale (propertyless males, Jews) would inevitably appear on the agenda. The logic of the process did not necessarily move events in a straight line forward, but in the long run it tended to do so … In the workings of this logic, the supposedly metaphysical nature of the Declaration of the Rights of Man and Citizen proved to be a very positive asset. Precisely because it left aside any question of specifics, the July–August 1789 discussion of general principles helped set in motion ways of thinking that eventually fostered more radical interpretations of the specifics required.33

Several elements can be distilled from the above formulation. First, the universal at play here is (unlike the classical or modernist variants) only ‘supposedly metaphysical’. It is not removed from time and space, but rather is fully temporalised itself and responsive to politics and society. Second, this temporalised and mobile universal moves precisely in response to the claims of particular groups for inclusion within the franchise of rights. Third, the mobility of this universal is (despite Hunt’s qualifications) linear and progressive—over time, more and more groups come to insist on their equal status as humans within the rights franchise as they are gradually imagined to be equals. Fourth, it is precisely the claimed universality of rights that invites this expansionary logic (that is, it ‘help[s]’, as she puts it above, ‘set in motion ways of thinking [and political acting]’). So, here we have a renewed conception of the universality of human rights which understands the universal and the particular dimensions to be in tension, but this tension is seen as politically productive in that it gradually leads to the expansion of the rights franchise so as to include more (and hitherto unthinkably different) particulars.34 This is a mobile and contingent universal open to contestation and progressive social change, a promising and beckoning universal. We can see a version of this kind of universalism invoked in the case law of the European Court when the ­Convention is understood not as a static statement of timeless values, but rather, as the Court put it first in Tyrer v UK, as a ‘living instrument’ whose rights stand to be ‘interpreted in the light of present-day conditions’.35 According to such a ­conception, the Court progressively updates the content of the universal in light of the ‘better understanding’ and ‘increased tolerance’, as the Court put it several years later in Dudgeon v UK, disclosed in time.36 This (unilinear and progressive)

33 

ibid 150–51. Hunt is by no means alone in adopting such a view. It is implied, for example, in Jack Donnelly’s understanding of the ever-expanding liberal franchise of human rights law in which first non-propertied men, and then women, and finally a succession of racial and ethnic others came to insist upon their equal humanity as rights-holders (see his ‘Human Rights and Asian Values: A Defence of “Western” Universalism’ in Joanne R Bauer and Daniel A Bell (eds), The East Asian Challenge for Human Rights (Cambridge, Cambridge University Press, 1999) 63–64). 35  Tyrer v UK (App No 5856/72) Judgment of 25 April 1978, Series A No 26 [31]. 36  Dudgeon v UK (App No 7525/76) Judgment of 24 February 1983 [60]. 34 

48  Ben Golder judicial ­ dynamism responds to changes in practice and is understood, and ­celebrated, as a form of ‘evolutive interpretation’ which enlivens and guarantees Convention rights.37 And yet despite the more grounded, politicised conception of the universal offered by Hunt (and implicit in conceptions of the ‘evolutive interpretation’ of the European Convention), hers remains a curiously depoliticised account of the politics of human rights. It is an account of the politics of human rights that lacks any sense of contingency, unpredictability, rupture or political agency. As Samuel Moyn observes: ‘The protagonists of her book are not people thinking and acting on their convictions but rights themselves, which do things like “creep,” “thicken,” “gain ground,” “gather momentum,” “reveal a tendency to cascade,” have a ­“bulldozer force,” “make their way ineluctably,” “take shape by fits and starts,” “take a backseat” and “remain in need of rescue”.’38 This elision of political agency in the making of the meaning of rights can be sourced back to Hunt’s insistence that there is a logic immanent to rights themselves which vouchsafes their progressive directionality—it is as if the long-term tendency of rights to expand and become more inclusive (more universal) stands in for the present, and difficult, political work of agitating for new rights and new conceptions of the holders of rights. Key to such an account is the celebration of ‘progress’ (or, in terms of the ECtHR, similar notions of ‘evolution’), but this is to miss the point that what we call progress or evolution is the outcome of political contestation: There may well come what we later will call progress, and new identities may be allowed or ushered onto the threshold of justice, but progress does not come with its own guarantee, nor is it a meaningful criterion to guide us. In the moment we do not know in what progress might consist, and new claims may seem laughable. Looking backward, we can say with satisfaction that the chrono-logic of rights required and therefore delivered the eventual inclusion of women, Africans, and native people into the schedule of formal rights. But what actually did the work? The impulsion of rights, their chrono-logic, or the political actors who won the battles they were variously motivated to fight and whose contingent victories were later credited not to the actors but to the independent trajectory of rights as such?39

What is missing from such chronological accounts is the sense of unpredictability and the possibility that, in fact, the limits of the human can in any moment contract rather than happily expand—that is, precisely, a politics of human rights that appreciates that the expansion (or contraction) of the category of the universal is a hard-fought and unpredictable affair. Hans Joas, writing of such demands for inclusion within the universal, reminds us helpfully that they always ‘had their opponents; some—such as the abolition of slavery—were ­bitterly resisted,

37 See Kanstantin Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of the ­European Convention on Human Rights’ (2011) 12(10) German Law Journal 1730. 38  Samuel Moyn, Human Rights and the Uses of History (London, Verso, 2014) 8. 39  Bonnie Honig, Paradox, Law, Democracy: Emergency Politics (Princeton, Princeton University Press, 2009) 47.

Varieties of Universalism in Human Rights Discourse 49 i­mplemented for a time but quickly reversed; others—such as full rights for women—were viewed, even by the most radical universalists, partly as preposterous, and partly as a danger to the life of society’.40 In terms of the European Convention, proponents of an evolutionary and seamlessly progressive approach to the interpretation of Convention rights effect a similarly dehistoricising and depoliticising move when they maintain that in pursuing a so-called ‘living instrument’ approach to the Convention rights, the Court is ‘not expanding or inflating the scope of the ECHR rights … but merely discovers what these human rights always meant to protect’—as if there were some original principle or logic installed in the Convention that dictated the subsequent and beneficial course of events.41

IV.  HUMAN RIGHTS AND HEGEMONIC UNIVERSALISM

Returning now to Laclau’s schematic discussion of several different conceptions of the particular and the universal, we encounter the fourth and final model: his own. As expected from his critique of the politics of pure particularism broached above, Laclau concludes that ‘rejecting universalism in toto as the particular content of the ethnia of the West—can only lead to a political blind alley’.42 Laclau hence attempts to reconceive of the relationship between the particular and the universal. Such an approach starts from the proposition that ‘contemporary ­societies’ are ‘plural and fragmented’, but ‘instead of remaining in this particularistic moment, it tries to inscribe this plurality in equivalential logics which make possible the construction of new public spheres. Difference and particularisms are the necessary starting point, but out of it, it is possible to open the way to a relative universalization of values which can be the basis for a popular ­hegemony’.43 On this approach, each particular group makes a claim to represent (or, better, temporarily construct or occupy) the universal. ‘If democracy is possible’, writes Laclau, ‘it is because the universal has no necessary body and no necessary content; different groups, instead, compete between themselves to temporarily give to their particularisms a function of universal representation’.44 So, one can immediately see that this universal—unlike either its metaphysical classical or modernist forebears—has ‘no necessary body and no necessary content’. It is in this sense (and I will return to this in the final section below) an ‘empty ­signifier’ into which different content can be introduced by particular groups 40  Hans Joas, The Sacredness of the Person: A New Genealogy of Human Rights, trans Alex Skinner (Washington DC, Georgetown University Press, 2013) 18–19. 41  George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Geir Ulfstein, Andreas Follesdal and Birgit Peters (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (Cambridge, Cambridge University Press, 2013) 125. 42  Laclau (n 11) 35. 43  ibid 65. 44  ibid 35.

50  Ben Golder making their political claims.45 In terms of European human rights law, then, such an understanding of the ­universal figures the Convention rights not as bearing within themselves a determinate meaning which is later, according to a moral reading, discovered within it;46 rather, it understands the Convention rights as being empty of an original meaning, which is instead supplied through the political and legal process of rights-claiming. As each new claim is made, the human of human rights is materialised differently. This universal is hence not a pre-existing normative standard that particulars try to emulate or incarnate somehow; rather, it is they who ‘transiently’47 and contingently construct it. The universal emerges, for the time being, as a result of political contestation over its content. It follows that the contours of the universal cannot be divined from the terms of the Convention itself or from any one particular Member State, but, rather, from the ‘context of the antagonism’—that is, from the balance of forces between the different political groups affiliating or disaffiliating, and vying for occupation of the universal.48 This political struggle to give temporary particular content to the empty universal is what Laclau calls the struggle for hegemony:49 ‘To hegemonize something is exactly to carry out this filling function.’50 And, as he insists, any given outcome of hegemonic contests over the content of the universal category is bound to be both ‘precarious and threatened’.51 It is precarious in the sense that those particular interests who successfully hegemonise their values in the universal form of the Convention rights cannot assume this will always and necessarily be the case—it is a political victory always susceptible to being overturned by the mobilised interests of other (threatening) particulars with other contending values and positions. With Laclau’s formulation of an empty universal into which competing political groups strive to inscribe their particular content, we arrive at a conception of the universal that seeks to break with the metaphysics and the closure of the modernist universal, yet at the same time to keep open the possibility of other articulations of the universal and thence to also break with the travails of particularism. It is an unreservedly post-foundationalist conception of universality, but not for this reason nihilistic or apolitical. Rather, it insists that contests over universal values must take place politically and not metaphysically—as an avowed, contestable claim for political universalisation and not as a timeless rendering of an already existing

45 ibid. 46 

cf Letsas (n 41) 125. Laclau (n 11) 56. 48  ibid 15. 49  The concept of hegemony is most fully developed in the joint work of Ernesto Laclau and ­Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (2nd edn, London, Verso, 2001 [1985]). 50  Laclau (n 11) 44. 51  ibid 55. 47 

Varieties of Universalism in Human Rights Discourse 51 universal truth.52 It is for these reasons that it has been particularly ­influential not just on Laclau’s (and Mouffe’s) favoured political theoretical terrain of ­democracy, but in the specifically legal domain as well. In The Future of Human Rights, ­Upendra Baxi writes that Laclau’s central insight about the empty and hegemonic universal ‘should be easy of grasp for lawpersons and human rights activists and practitioners. The universalistic notions of “democracy”, “rule of law”, “justice”, and “human rights”, for example, remain empty signifiers until the various specific, particularistic demands/interests are aggregated’.53 And, indeed, hegemonic universalism has proven not simply easy to grasp but also productive to apply in a range of different legal contexts. In the domain of international law, for example, Martti Koskenniemi has written extensively about a conception of international legal argumentation as a hegemonic technique. Invoking Laclau’s and Mouffe’s writings, Koskenniemi explains: In law, political struggle is waged on what legal words such as ‘aggression’, ‘selfdetermination’, ‘self-defence’, ‘terrorist’ or jus cogens mean, whose policy will they include, whose will they oppose. To think of this struggle as hegemonic is to understand that the objective of the contestants is to make their partial [or, particular] view of that meaning appear as the total view, their preference seem like the universal preference. (Emphasis in original)54

Famously, in the concluding chapter to his 2001 book, The Gentle Civilizer of Nations, Koskenniemi argues for conceiving of international law’s emancipatory promise in terms of a universalistic ‘culture of formalism’. ‘[U]niversality (and universal community)’, he writes there, ‘is written into the culture of formalism as an idea (or horizon), unattainable but still necessary.’55 International legal formalism in this sense provides an opening, an empty space for the articulation of competing versions of the universal; as such, ‘the culture of formalism resists reduction into substantive policy, whether imperial or particular. It represents the possibility of the universal (as Kant well knew) but it does this by remaining “empty,” a negative instead of a positive datum, and thus avoids the danger of imperialism. Instead, it tries to induce every particularity to bring about the universality hidden in it’.56 And this understanding of the empty universal has been applied directly to rights claims as well. Moreover, it is seen by

52  Ernesto Laclau and Chantal Mouffe, ‘Post-Marxism without Apologies’ (1987) 166 New Left Review 79, 102. 102 (cf Michael Freeman, ‘The Philosophical Foundations of Human Rights’ (1994) 16(3) Human Rights Quarterly 491). 53 Upendra Baxi, The Future of Human Rights (2nd edn, New Delhi, Oxford University Press, 2006) 163. 54 Martti Koskkeniemi, ‘International Law and Hegemony: A Reconfiguration’ (2004) 17(2) ­Cambridge Review of International Affairs 197, 199. 55 Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960 (Cambridge, Cambridge University Press, 2002) 507. 56  ibid 504.

52  Ben Golder many as a means to replenish their political potential in the contemporary era. Samuel Chambers writes that: ‘We can interpret rights as empty signifiers that mediate the gap between universal and particular. As such, rights might regain the critical political currency they seem to have lost within the terms of latemodern liberalism.’57 On this understanding, making a rights claim on behalf of a particular political constituency does not amount to a claim for special pleading, but, as Laclau insists, necessarily entails the particular political group making reference to a horizon beyond itself. ‘[R]ights’, observes Koskenniemi in another context, are ‘valuable precisely because of the way they combine the particular with an attempt at the universal and thus provide resources for ­challenging existing hierarchies and exclusions … [for] to claim a right is … to claim in the name of universality: this belongs not only to me but to everyone in my position’ (emphasis in original).58 Rights claims cannot help but generalise beyond the particular. But neither can such a rights claim amount to a straightforward petition for inclusion or equality, if by that is meant simply a demand for inclusion within a pre-existing universal category that remains conceptually undisturbed by that demand (that is, simply an exercise in formally subsuming a particular under a universal category). What Laclau teaches us is that such a contest between the particular and the universal necessarily contaminates both poles: neither the universal nor the particular remains the same after a hegemonic articulation.59 In human rights terms, then, we might understand claims for new human rights, or new applications or interpretations of human rights, or the application of existent human rights to new and unprecedented groups of people precisely as a hegemonic contest over the very meaning of ‘the human’ of rights. Each fresh human rights claim makes a political claim to occupy and interpret the empty, universal signifier of the human. In making such a claim, the group is drawn out of itself and implicitly (or explicitly) invokes the universal, but at the same time it dislodges that universal; we can never interpret the human in quite the same way after such a claim is made (whether it succeeds juridically at that moment or is defeated or deferred to another day). In this sense, then, human rights propose the (legal) form in which (political) contests over the universal are made. It is not itself in direct contact with, representative of or, indeed, an incarnation of those universal values, but merely a medium in which the irreducibly political claims of various particular groups come to be inscribed.

57  Samuel Chambers, ‘Giving up (on) Rights?’ The Future of Rights and the Project of Radical Democracy’ (2004) 48(2) American Journal of Political Science 185, 197–98. For a related articulation of human rights, see Joe Hoover, ‘Towards a Politics for Human Rights: Ambiguous Humanity and Democratizing Rights’ (2013) 39(3) Philosophy & Social Criticism 935. 58 Martti Koskenniemi, ‘Human Rights, Politics, and Love’ (2002) 13 Finnish Yearbook of ­International Law 79, 93. 59  Laclau (n 11) viii.

Varieties of Universalism in Human Rights Discourse 53 V.  CONCLUDING THOUGHTS

As we have seen, the standard critiques of the margin of appreciation doctrine as a dangerous form of cultural relativism attenuating the universal reach of human rights law themselves rest upon particular articulations of universalism. That there is not one universalism but many, and consequently no single way to comprehend the relationship between the realm of the particular and the realm of the universal, was my conceptual starting point in this chapter. My assumption was that by ­surveying some of those different understandings of universalism, we could begin to grasp what was at stake both legally and politically in certain understandings (or misunderstandings) of the margin of appreciation in European human rights law. With the help of Laclau and other theorists, then, I surveyed a range of different conceptions of the universal, ranging from the classical and Christian theological understandings of the universal to the now much assailed modernist universal in human rights, to a politics of pure particularism that retreats from any universal validity claims (in human rights terms, a form of cultural relativism) and thence to the more critically rehabilitated forms of universalism in contemporary human rights discourse, whether they be the more progressivist-teleological or politicalagonistic variants. The intent of the foregoing discussion was thus to pluralise our understandings of the universal and thereby to show that it is only if one subscribes to a certain, closed understanding of the universal that one could assert, as does Benvenisti, that the margin of appreciation doctrine, ‘with its principled recognition of moral ­relativism, is at odds with the concept of the universality of human rights’.60 For Benvenisti, the universal is pre-established and the various national deviations from the doctrine enabled by the margin of appreciation beget p ­ articularist attenuations of that universal dangerous in their moral consequences. And yet, with Laclau, we might better understand the function of the margin of appreciation precisely as a universalist tool designed to permit not derogations or deviations from a set universal (a kind of national carve-out), but rather as enabling a displacement and resignification of the universal itself, as part of an ongoing and never-stilled democratic dialogue about what the universal content of human rights is and what it will be in the future. On this understanding, the particular and the universal, the national and the supranational, are co-implicated and relate to each other dynamically. This is not, I hasten to add, the kind of ‘dynamism’ we encounter in celebrations of the evolutive approach to the interpretation of Convention rights. With that kind of pseudo-dynamism, anything truly unpredictable and contingent in the dynamic is promptly domesticated in favour of a teleological progressivism that ensures the meaning of the Convention will always only expand to mean what it should have meant in the first place. Rather, the kind of dynamic interaction between the particular claims to universality and

60 

Benvenisti (n 4) 844.

54  Ben Golder the (fragile, because fleeting) universality achieved once a human rights claim is materialised as the universal-for-the-time-being is a much more radically political process that neither assumes a single direction nor a single meaning to those Convention rights. This way of understanding the relationship between the particular and the universal, and in consequence the margin of appreciation, sees rights claims as a means of political contestation and human rights law as a legal forum in which those claims get ventilated. This is not so much a contest between different v­ ersions of the universal seeking to achieve a kind of compromise as it is between different political attempts, in and through the legal medium of E ­ uropean human rights law, to (re)determine the meaning of universality itself.

3 When Human Rights Clash in ‘the Age of Subsidiarity’ What Role for the Margin of Appreciation? STIJN SMET

[T]he next phase in the life of the Strasbourg Court might be defined as the age of subsidiarity.1 Robert Spano, Judge at the European Court of Human Rights

I. INTRODUCTION

T

HE MARGIN OF appreciation is a doctrine on fire. In recent years, it has gained significantly in prominence. The margin of appreciation was one of the focal points of the 2012 Brighton Declaration on the Future of the ­European Court of Human Rights,2 and has since been explicitly incorporated into the preamble of the European Convention on Human Rights (hereinafter ECHR or ‘the ­Convention’).3 Both developments were the direct result of criticism of the E ­ uropean Court of Human Rights (hereinafter ECtHR or ‘the Court’) by ­governments, ­parliaments and judges in, among others, the UK, the N ­ etherlands and Russia.4 The ECtHR has responded to this criticism through a renewed emphasis, in its case law, on the principle of subsidiarity and increased reliance on the margin of appreciation

1  Robert Spano, ‘Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487 (doi: 10.1093/hrlr/ngu021). 2  Council of Europe, High Level Conference on the Future of the European Court of Human Rights— Brighton Declaration (2012), paras. 11–12, available at www.echr.coe.int/Documents/2012_Brighton_ FinalDeclaration_ENG.pdf. 3  Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, art 1: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.’ 4  Spano (n 1).

56  Stijn Smet doctrine.5 This chapter examines the consequences of that shift in relation to a particular category of cases at the Strasbourg Court: those that entail a clash between human rights. Famous examples of such clashes are cases of newspapers publishing articles that impact on the reputation of i­ ndividuals6 or of churches dismissing their employees for actions they have taken in their private lives.7 This chapter focuses on human rights clashes for two reasons. First, because the argument for the margin of appreciation plays out differently in relation to human rights clashes than it does in relation to ‘traditional’ cases, in which a human right is opposed by a public or general interest (section III). In the latter cases, the countermajoritarian function of human rights as ‘trumps’8 or ‘shields’9—protecting individuals against abuse of power by their governments—offers a strong prima facie argument against overzealous reliance on the margin of appreciation on the part of the ECtHR.10 When human rights clash, however, the trump card cannot be played. As a result, the counter-majoritarian argument does not enter the scene. In relation to human rights clashes, the Court’s human rights protective role indeed appears to be more ‘flexible’. I will argue that, under those circumstances, there may well be greater cause to defer to national legislators and courts. But, I will insist, this assumption needs to be nuanced (section V). The second reason for focusing the analysis on human rights clashes relates to the inconsistency and incoherence of the Court’s current use of the margin of appreciation in tackling such clashes, which leaves it vulnerable to criticism. After having spelled out the criticism (section IV), I will suggest an alternative approach to demonstrate the substantive role the margin of appreciation can play in tackling human rights clashes (section V). The core argument of this chapter is thus that the margin of appreciation has an important, substantive role to play in the resolution of human rights clashes. Throughout the chapter, I identify a number of democracy-enhancing reasons that advocate in favour of granting states a margin of appreciation in tackling human rights clashes. I submit, in particular, that states are in principle better placed to provide a first attempt at resolving human rights clashes and should be granted some leeway in arriving at that resolution. However, I oppose the automatic granting of a wide margin of appreciation in relation to human rights clashes, which appears to be the ECtHR’s principled approach at present. I argue that democracyenhancing reasons of a different kind—among others, the counter-majoritarian 5 ibid; Dean Spielmann, ‘Whither the Margin of Appreciation’, UCL Current Legal Problems Lecture, 20 March 2014, available at: www.echr.coe.int/Documents/Speech_20140320_London_ ENG.pdf; Dean Spielmann, ‘Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’, (2012) 14 Cambridge Yearbook of European Legal Studies 381–418. 6 ECtHR, Axel Springer AG v Germany (App No 39954/08, 7 February 2012) [2012] ECHR 227. 7 ECtHR, Fernández Martínez v Spain (App No 56030/07, 12 June 2014) [2014] ECHR 615. 8 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977) xi and xv. 9  Frederick Schauer, ‘A Comment on the Structure of Rights’ (1993) 27 Georgia Law Review 429. 10  George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies (2006) 705.

When Human Rights Clash in ‘the Age of Subsidiarity’ 57 function of human rights—advocate against the adoption of an overly deferential position towards the state. I conclude that both sets of democracy-enhancing reasons can be joined in support of a ‘default’ position under which states are granted a ‘certain’ margin of appreciation in resolving human rights clashes, as opposed to a ‘wide’ one. I finally indicate that in each specific human rights clash, some finetuning remains in order to move from the ‘default’ position to the determination of the final breadth of the margin of appreciation in the particular circumstances. II.  SETTING THE SCENE: PRELIMINARY REMARKS ON THE MARGIN OF APPRECIATION AND SUBSIDIARITY

The margin of appreciation, a hotly debated concept that lies at the heart of a deeply contested doctrine,11 did not—until recently12—feature in the ECHR itself. Instead, it was developed as a cornerstone of the Convention system by the Court in its case law. Yet, the Court has never fully explained what the margin of appreciation exactly is or does. Commentators have attempted to fill the gap, but many have found the concept to be particularly elusive.13 Scholarly attempts at defining the margin of appreciation have led to a variety of—often incompatible— descriptions, ranging from ‘a margin of error’14 over ‘the other side of the proportionality principle’15 to ‘an expression of the concept of subsidiarity’.16 11  Several scholars consider the margin of appreciation doctrine to be redundant, unjustified and/ or dangerous. See, for instance, Letsas (n 10); Jeffrey A Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2005) 11 Columbia Journal of European Law 113. Several ECtHR judges have also expressed firm criticism of the doctrine in their separate opinions. See, for instance, the partly dissenting opinion of Judge De Meyer in ECtHR, Z v Finland (App No 22009/93, 25 February 1997) [1997] ECHR 10: ‘In the present judgment the Court once again relies on the national authorities’ “margin of appreciation”. I believe that it is high time for the Court to banish that concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies … where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not’; concurring opinion of Judge Rozakis in ECtHR, Odièvre v France (App No 42326/98, 13 February 2002) [2003] ECHR 86: ‘when, as in the present case, the Court has in its hands an abundance of elements leading to the conclusion that the test of necessity is satisfied by itself and embarks on a painstaking analysis of them, reference to the margin of appreciation should be duly confined to a subsidiary role’. 12  See n 3 above and accompanying text. 13  Lord Lester of Herne Hill has famously stated that: ‘The concept of the “margin of appreciation” has become as slippery and elusive as an eel.’ See Lord Lester of Herne Hill, ‘General Report on Theme 2’ in Council of Europe (ed), Yearbook of the European Convention on Human Rights: 8th International Colloquy on the European Convention on Human Rights (Leiden, Martinus Nijhoff, 1997) 233. 14  Sébastien Van Drooghenbroeck, La proportionnalité dans le droit de la convention européenne des droits de l’homme: prendre l’idée simple au sérieux (Brussels, Bruylant, 2001) 506–09 (describing the position as held by others and offering references to various authors, without himself sharing their views). 15  Yutaka Arai-Takahashi, The Margin of Appreciation and the Principle of Proportionality in the Jurisprudence of the ECHR (Cambridge, Intersentia, 2001) 14 (literally, Arai-Takahashi writes: ‘It is possible to consider the application of the proportionality principle as the other side of the margin of appreciation’—since this implies that the same goes the other way around, I have taken the liberty to invert the relationship in the text). 16  Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and ­Proportionality (Oxford, Oxford University Press, 2012) 61.

58  Stijn Smet Of these conceptions, the only one to explain why the margin would be central to the ECHR system relates the margin of appreciation directly to the subsidiarity principle.17 Although the margin of appreciation certainly has an influence on the proportionality test, the reason for its existence can only be located in the subsidiarity principle. The subsidiarity principle entails a system of cooperation between the ECtHR and the Contracting States, whereby the latter carry the primary responsibility in terms of protecting the human rights enumerated in the ECHR.18 The Contracting States are subject to human rights duties, correlative to the ECHR’s human rights. In the Court’s language, the ECHR imposes both negative and positive obligations on the Contracting States.19 In an important sense, the Contracting States are both the first line of defence of and the primary threat to human rights. Where positive obligations are concerned, states are the first line of defence. They are under a duty to protect and fulfil human rights, for instance, by preventing or penalising domestic violence and by providing adequate prison conditions. Where negative obligations are concerned, conversely, states are in the first place a threat to human rights. In relation to negative obligations, it is state bodies or state agents that violate human rights. Even in that scenario, however, the subsidiarity principle has a crucial role to play, for it is first and foremost up to the state to redress human rights violations committed by one of its bodies or agents. Crucially, the ECtHR only comes in when Contracting States have either failed to redress (alleged) violations of negative obligations or have (allegedly) failed in their positive obligations to protect and fulfil human rights. The Court’s role is thus necessarily of a subsidiary nature, ie, one of supervision in the event that Contracting States fail to carry out their primary responsibility in protecting the ECHR’s human rights.20 The margin of appreciation doctrine is an immediate expression of this subsidiary role of the Court. The margin of appreciation doctrine gives content to the subsidiarity principle in a number of ways, all of which are detailed in the introductory chapter to this volume and will therefore not be repeated here. In the remainder of this chapter, I intend to demonstrate that one of the ideas that give content to the subsidiarity principle is particularly relevant to human rights clashes: the argument that the national authorities are in principle better placed to provide a first attempt at resolving those clashes. Before delving into that idea, I will first set out and critique the Court’s current approach to the margin of appreciation in relation to human rights clashes.

17 

ibid 38. Brems, ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights’ (1996) 56 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 300; Van Drooghenbroeck (n 14) 694. 19  For a recent statement, see ECtHR, Söderman v Sweden (App No 5786/08, 12 November 2013) [2013] ECHR 1128 [78]. 20  Legg (n 16) 107. 18 Eva

When Human Rights Clash in ‘the Age of Subsidiarity’ 59 III.  THE COURT, THE MARGIN OF APPRECIATION AND HUMAN RIGHTS CLASHES

Clashes between human rights have become part and parcel of the ECHR system as a concomitant of the indirect horizontal effect—in its turn an immediate result of the Court’s doctrine on positive obligations—of the Convention’s human rights at the national level. What begins as a purely private dispute at the national level may reach the ECtHR in the form of a clash between human rights in one of two ways: either because the domestic authorities intervening in the dispute infringe one of the parties’ human rights or because they fail to protect the other party’s human rights. For instance, in a dispute concerning a newspaper article featuring photographs of a celebrity in her private life, the domestic courts may either find the newspaper liable (thereby infringing its freedom of expression) or fail to do so (thereby failing to protect the celebrity’s right to private life). In both cases, the injured party may bring a claim to Strasbourg. The Court has shown keen awareness of this evolution in Chassagnou v France, the judgment in which the Court first attempted to develop a particular approach to human rights clashes: The balancing of individual interests [protected by human rights] that may well be contradictory is a difficult matter, and Contracting States must have a broad margin of appreciation in this respect, since the national authorities are in principle better placed than the European Court to assess whether or not there is a ‘pressing social need’ capable of justifying interference with one of the rights guaranteed by the Convention. (Emphasis added)21

Initially, it appeared as though the Chassagnou principle would not play a major role in the Court’s case law. Peggy Ducoulombier and Sébastien Van Drooghenbroeck have convincingly demonstrated that the Court did not actually apply it in the immediate period following the Chassagnou judgment.22 In recent years, however, a new version of the principle has surfaced, based on a different strand of case law. Indeed, in a myriad of recent cases involving clashes between human rights, the ECtHR has held that it: [G]enerally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.23 21 ECtHR, Chassagnou and Others v France (App Nos 25088/94, 28331/95 and 28443/95) [1999] ECHR 22 [113]. 22  Peggy Ducoulombier, ‘Les Conflits de Droits Fondamentaux devant la Cour Européenne des Droits de l’Homme’ (PhD dissertation, University of Strasbourg, 2008) 360–64; Van Drooghenbroeck (n 14) 541–42. To my knowledge, the only two instances in which the Court has reiterated the principle in the same terms as those used in Chassagnou are ECtHR, Ashby Donald v France (App No 36769/08, 10 January 2013) [40] and ECtHR, MGN Ltd v UK (App No 39401/04, 18 January 2011) [2011] ECHR 66 [142]. 23 ECtHR, Eweida v UK (App Nos 48420/10 et al, 15 January 2013) [2013] ECHR 37 [106]. See also, among many other examples, ECtHR, A v Norway (App No 28070/06, 9 April 2009) [2009] ECHR 580 [66]; MGN Ltd (n 22) [142]; ECtHR, Fáber v Hungary (App No 40721/08, 24 July 2012) [2012] ECHR 1648, para. 42.

60  Stijn Smet Alternatively, it has held that: The Contracting States will usually enjoy a wide margin of appreciation if the public authorities are required to strike a balance between competing private and public interests or Convention rights.24

The latter, wider iteration of the principle should be discarded for being both superfluous and principally objectionable. Its overly broad formulation is out of line with the actual practice of the Court. The Court has always emphasised that the ‘search for a fair balance between … the general interest … and … the protection of the individual’s fundamental rights [is] inherent in the whole of the Convention’.25 As a result, the Court treats the vast majority of cases as—at some level—requiring a balance to be struck between ‘competing private and public interests or Convention rights’.26 Yet, clearly the Contracting States are not automatically awarded a wide margin of appreciation in each and every case. In the Court’s case law, the granting of a wide margin is not the rule, but an exception, usually the result of the presence of an additional factor, such as the lack of a European consensus or the idea that the national authorities are ­better placed to assess local needs and sensitivities.27 Indeed, in order for the Court to fulfil its counter-majoritarian function, a wide margin of appreciation should not be routinely granted.28 A commitment to a view of human rights as strong entitlements leaves no room in the ECHR system for the automatic granting of a wide margin of appreciation. Given that the ECHR was specifically set up to, inter alia, protect individuals’ human rights against the abuse of governmental powers, the Court should, in principle, carefully scrutinise the measures taken at the domestic level. 24 ECtHR, Kearns v France (App No 35991/04, 10 January 2008) [2008] ECHR 1 [74]. See also, among many other examples, ECtHR, Moretti and Benedetti v Italy (App No 16318/07, 27 April 2010) [63]; ECtHR, Kautzor v Germany (App No 23338/09, 22 March 2012) [70]; Fernández Martínez (n 7) [78]. 25 See, among many authorities, the Grand Chamber judgments of ECtHR, N v UK (App No 26565/05, 27 May 2008) [2007] ECHR 746 [44]; ECtHR, Christine Goodwin v UK (App No 28957/95, 11 July 2002) [2002] ECHR 588 [72]; ECtHR, Öcalan v Turkey (App No 46221/99, 12 May 2002) [2003] ECHR 125 [88]. 26  Ducoulombier (n 22) 362. 27 In A, B and C v Ireland, for instance, the Court explicitly tied the wide margin of appreciation of the state in striking a balance between the protection accorded under Irish constitutional law to the right to life of the unborn and the human rights of the applicants, to the acute sensitivity of the moral and ethical issues raised by the question of abortion. See ECtHR, A, B and C v Ireland (App No 25579/05, 16 December 2010) [2010] ECHR 2032 [233]: ‘There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention.’ 28  Spano (n 1) 2: ‘the whole point of judicial review, whether national or international, is to provide a check on democratic decision-making as it may, disproportionately, restrict individual human rights. Courts are, thus, by definition counter-majoritarian’.

When Human Rights Clash in ‘the Age of Subsidiarity’ 61 It is at this point that the salient features of clashes between human rights become crucial to the argument of this chapter. Clashes between human rights typically involve two (sometimes three or more) parties, each relying on their own individual human rights. There are thus no trump cards to be played or shields to be wielded. Instead, often difficult choices need to be made on which human right to sacrifice and which to protect, in the concrete circumstances of each case. No matter how the ECtHR decides such cases, one human right will generally lose and the other will win. There moreover is no prima facie reason to doubt the state’s willingness to adhere to its human rights obligations in tackling human rights clashes. Most human rights clashes pit one individual human rights-holder against another. In principle, there is less cause to assume that the state might abuse its power to restrict human rights in such circumstances than in situations in which, for instance, the exercise of human rights is perceived by the state to threaten national security. As a result, one could argue that there may well be more room for the margin of appreciation in relation to human rights clashes than in relation to ‘traditional’ human rights cases. This hypothesis will be explored—and nuanced—below (section V). First, I will examine another iteration of the principle that ties the margin of appreciation to the balancing of human rights in the Court’s case law: the ‘clashing rights’ principle.

IV.  THE COURT AND THE ‘CLASHING RIGHTS’ PRINCIPLE

Above, I have rejected the wider iteration of the principle through which the Court has tied the margin of appreciation to the balancing of human rights. There exists, however, a narrower iteration of the same principle, which is more focused. The narrower iteration states that the Court ‘generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights’.29 This ‘clashing rights’ principle cannot be dismissed as easily. Its formulation is markedly narrower than the rejected broader principle. Since the ‘clashing rights’ principle is applicable to a particular segment of the Court’s case law rather than to its entirety, it is not as strikingly superfluous or principally objectionable as the broader principle. But the ‘clashing rights’ principle is noticeably underdeveloped in the Court’s case law. As a result, it suffers from other defects. Most notably, the Court usually simply posits the principle without explaining why the state should be granted a wide margin of appreciation.30 In the absence of such an explanation, the argument appears circular: the domestic authorities should be granted a wide margin when balancing competing human rights because they have a wide margin of appreciation when balancing competing 29  Eweida (n 23) [106]. See also, among many other examples, ECtHR, A v Norway (n 23) [66]; MGN Ltd (n 23) [142]; Fáber (n 23) [42]. 30  See, for instance, A v Norway (n 23) [66]; Eweida (n 23) [106]; Kearns (n 24) [74]; Moretti and Benedetti (n 24) [63]; Fernández Martínez (n 7) [78].

62  Stijn Smet human rights. One cannot help but recall Macdonald’s lucid remark that, here, the ECtHR ‘is really providing no reason at all [for the margin of appreciation] but is merely expressing its conclusion not to intervene, leaving observers to guess the real reasons which it failed to articulate’.31 Indeed, the ‘clashing rights’ principle stands in dire need of justification. In what follows, I will assess the value of the ‘clashing rights’ principle in more detail. I will first argue that the principle has been erroneously deduced from the case law in which its origins lie. I will go on to argue that the principle is out of line with the Court’s broader case law on human rights clashes, in which the Court does not automatically grant a wide margin of appreciation. Finally, I will return the most promising and original iteration of the ‘clashing rights’ principle, the Chassagnou principle, which ties the granting of a wide margin of appreciation directly to the argument that the national authorities are ‘better placed’ to balance clashing human rights. As such, the Chassagnou principle at least offers a reason as to why a wide margin should be granted, thereby avoiding the charge of circularity. I will, however, object to the automatic granting of a wide margin of appreciation in human rights clashes, for other reasons (section V).

A. The ‘Clashing Rights’ Principle is Inconsistent with its Own Historical Origins In most clashing rights judgments, the Court merely posits the ‘clashing rights’ principle—ie, the principle according to which ‘the Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights’32—without explaining why a wide margin is being granted. All recent judgments that posit the ‘clashing rights’ principle with reference to earlier case law cite Evans v UK (2007) as its source.33 Evans itself refers back to Fretté v France (2002) and Odièvre v France (2003) as the original source of the ‘clashing rights’ principle.34 A closer look at all three cases shows that the Court has not always been consistent in drawing on arguments of subsidiarity. This, in turn, has precluded it from arriving at a coherent approach to the role of the margin of appreciation in tackling human rights clashes. The following brief discussion of the deficiencies in the Court’s current use of the margin of appreciation illustrates the need for ways forward. 31  Ronald St J Macdonald, ‘The Margin of Appreciation’ in Ronald St J Macdonald et al (eds), The European System for the Protection of Human Rights (Leiden, Martinus Nijhoff, 1993) 85. 32  Eweida (n 23) [106]. See also, among many other examples, A v Norway (n 23) [66]; MGN Ltd (n 23) [142]; Fáber (n 23) [42]. 33  See, for instance, Fernández Martínez (n 7) [78]; Eweida (n 23) [106]. For an apparent exception, see Kautzor (n 24) [70] (referencing ECtHR, SH v Austria (App No 57813/00, 3 November 2011) [2011] ECHR 1878 as the source of the principle; however, the relevant paragraph of SH refers to Evans). A few judgments do not contain any reference to earlier judgments. See, for instance, A v Norway (n 23) [66]. 34 ECtHR, Evans v UK (App No 6339/05, 10 April 2007) [2007] ECHR 264 [77].

When Human Rights Clash in ‘the Age of Subsidiarity’ 63 In Odièvre, the Court did not even mention the term ‘wide margin of appreciation’. Instead, it spoke of a ‘certain’35 margin of appreciation and tied this margin to the lack of a European consensus on the matter at issue.36 In Fretté, the Court did explicitly grant a wide margin of appreciation to the state.37 However, it only did so because of the lack of common ground between the Contracting States on the issue of adoption by same sex couples.38 Also in Evans, the granting of a wide margin of appreciation was the result of other factors than the mere presence of a clash between human rights. The determining factors were instead: (i) the fact that the case concerned a morally and ethically delicate issue (IVF); and—once more—(ii) the lack of a European consensus on the matter.39 This brief overview serves to show that, throughout its journey in the Court’s case law, the ‘clashing rights’ principle has been shaped into something it originally was not: a naked principle for the automatic granting of a wide margin of appreciation in human rights clashes. This ‘mutation’ of the principle explains why the Court generally does not offer, in the later cases, any explanation as to why the ‘clashing rights’ principle entails the automatic granting of a wide margin of appreciation: no such reason exists. Somewhere along the line, the Court has lost sight of the real reasons why it has at times granted a wide margin of appreciation in resolving human rights clashes.40 This ‘blindness’ is, however, not omnipresent in the Court’s case law. In the majority of cases that entail a clash of human rights, the Court does not grant a wide margin of appreciation to the domestic authorities. This shows that the ‘clashing rights’ principle also does not cohere with the Court’s wider case law on human rights clashes.

B. The ‘Clashing Rights’ Principle Does Not Cohere with the Court’s Wider Case Law The ‘clashing rights’ principle maintains that ‘the Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights’ (emphasis added).41 The principle 35  Odièvre (n 11) [40]: ‘The boundaries between the State’s positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In particular, in both instances regard must be had to the fair balance which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation.’ 36  ibid [47]. 37 ECtHR, Fretté v France (App No 36515/97, 26 February 2002) [2002] ECHR 156 [41]–[42]. 38  ibid [41]. 39  Evans (n 34) [81]. 40  Note that an alternative explanation is possible, in the sense that the Court has purposively reinterpreted the prior cases in accordance with a developing principle that the Contracting States should be granted a wide margin of appreciation in resolving human rights clashes. I am grateful to Eva Brems for this suggestion. 41  Eweida (n 23) [106]. See also, among many other examples, A v Norway (n 23) [66]; MGN Ltd (n 23) [142]; Fáber (n 23) [42].

64  Stijn Smet thus implies that the granting of a wide margin of appreciation in conflicting ­Convention rights cases is the norm rather than the exception. However, careful analysis of the Court’s case law demonstrates that the truth is quite different. Indeed, the granting of a wide margin in human rights clashes remains the exception. In most cases, the Court either grants a ‘certain’ margin of appreciation or even narrows the margin due to the presence of clashing human rights.42 A few examples will serve to illustrate the point. In Sørensen and Rasmussen v Denmark, the presence of a clash between human rights led the Court to narrow, rather than widen, the margin of appreciation. The Court held that a reduced margin of appreciation should apply to the issue of closed-shop agreements, because these put the freedom of assembly of unions directly against the right not to join an assembly of individuals. Conversely, in all other union-related matters, ie, those that do not entail a clash between human rights, the Court favoured a wide margin of appreciation due to the presence of sensitive social and political issues and the lack of a European consensus: In the area of trade union freedom and in view of the sensitive character of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and given the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how the freedom of trade unions to protect the occupational interests of their members may be secured. However, where the domestic law of a Contracting State permits the conclusion of closed-shop agreements between unions and employers which run counter to the freedom of choice of the individual inherent in Article 11, the margin of appreciation must be considered reduced.43

In TV Vest As & Rogaland Pensjonistparti v Norway, the Court went even further. The case concerned an absolute ban on political advertising on television, regardless of the size of the political party requesting airtime for its advertisements. The applicant was the small Pensioners Party, which had won only 2.5 per cent of the vote at an earlier election and, as a result, did not receive any airtime in general programming. Political advertising was therefore one of its only means of reaching out to its electorate. In TV Vest, the Court did ‘not find it appropriate … to attach much weight to the various justifications for allowing States a wide margin of appreciation with reference to Article 3 of Protocol No. 1’ because ‘that might lead to results incompatible with the privileged position of free political speech under Article 10 of the Convention’.44 In other words, the possibility of

42  See, among many authorities, Odièvre (n 11) [40]; ECtHR, Öllinger v Austria (App No 76900/01, 29 June 2006) [2006] ECHR 665 [33]; ECtHR, Jäggi v Switzerland (App No 58757/00, 13 July 2006) [37]; ECtHR, Associated Society of Locomotive Engineers & Firemen (ASLEF) v UK (App No 11002/05, 27 February 2007) [2007] ECHR 184 [46]; Axel Springer (n 6) [85]–[88]; ECtHR, Von Hannover v Germany (No 2) (App No 40660/08, 7 February 2012) [2012] ECHR 228 [104]–[105] and 107; ECtHR, Aksu v Turkey (App Nos 4149/04 and 41029/04, 15 March 2012) [2012] ECHR 445 [62]–[63] and [67]. 43 ECtHR, Sørensen and Rasmussen v Denmark (App Nos 52562/99 and 52620/99, 11 January 2006) [2006] ECHR 24 [58]. 44 ECtHR, TV Vest As & Rogaland Pensjonistparti v Norway (App No 21132/05, 11 December 2008) [2008] ECHR 1687 [66].

When Human Rights Clash in ‘the Age of Subsidiarity’ 65 a clash between human rights led the Court to explicitly reject all arguments in favour of a wide margin, in square contradiction of the ‘clashing rights’ principle.45 In the remainder of this chapter, I will take my cue from the Court’s reference to a ‘certain’ margin of appreciation to reconstruct and reinterpret the role of the margin of appreciation in human rights clashes.

V.  A REINTERPRETED ROLE FOR THE MARGIN OF APPRECIATION IN HUMAN RIGHTS CLASHES

Thus far, I have been sceptical of the value of the ‘clashing rights’ principle. I have labelled the principle empty and circular, have argued that it is inconsistent with its own origins and have shown that it does not cohere with the Court’s wider case law on human rights clashes. Here, I aim to redeem the ‘clashing rights’ principle and, with it, the role of the margin of appreciation in the resolution of human rights clashes. I will do so by building upon the most promising version of the ‘clashing rights’ principle in the Court’s case law, the Chassagnou iteration. The Chassagnou principle ties the ‘clashing rights’ principle directly to the idea that the national authorities are ‘better placed’ to resolve human rights clashes.46 In the recent case of Fáber v Hungary, the Court has shed further light on this ‘better placed’ argument: [A] wide discretion is granted to the national authorities, not only because the two competing rights do, in principle, deserve equal protection that satisfies the obligation of neutrality of the State when opposing views clash, but also because those authorities are best positioned to evaluate the security risks and those of disturbance as well as the appropriate measures dictated by the risk assumption.47

In arguing that the national authorities are ‘better placed’ or ‘best positioned’, the Court has offered a reason for the existence of the ‘clashing rights’ principle. As a result, the ‘better placed’ iteration of the principle is no longer empty or circular. Three interrelated reasons further explain why this iteration of the ‘clashing rights’ principle is, prima facie, more convincing than the version rejected above. The first reason is related to the indivisibility of human rights. As duly mentioned by the Court in Fáber, clashing human rights should in principle be treated with equal respect, given that no hierarchy exists between them. In that respect, a second reason strongly favours the granting of a certain amount of ­leeway to the national authorities in resolving human rights clashes. That s­ econd reason is related to the counter-majoritarian function of human rights and the subsidiary nature of the ECtHR’s role. I have already argued that the countermajoritarian function of human rights explains why human rights should be granted principled, even if not conclusive, priority over public interests

45 

ibid [78]. See above, n 21 and accompanying text. 47  Fáber (n 23) [42]. 46 

66  Stijn Smet (as ‘trumps’ or as ‘shields’). This priority principle is of immediate relevance when states restrict human rights in pursuit of the public interest. But at first glance, it is much less relevant in cases of clashing human rights. In such cases, there is no principled reason for the Court to adopt a stance of ‘suspicion’ vis-à-vis the state’s intentions. There is no cause for concern that the state will unjustly limit individuals’ human rights in pursuit of majoritarian goals and objectives, thereby abusing its power. There is also no principled reason to doubt the state’s ability and willingness to treat both clashing rights with the equal respect they deserve. As a result, one could argue that the Court should leave ample room for the resolution of the clash through the democratic process. The argument from democracy leads us to the third and final reason why granting a wide margin of appreciation in human rights clashes is not immediately objectionable. This final reason is related to the role of the legislator, which is ideally suited—more so than the supranational ECtHR—to minimise the effects of (apparent) human rights clashes, either by avoiding such conflicts altogether or by reaching a compromise between the clashing rights. The supranational ECtHR, conversely, cannot do much more than rule whether or not the human right invoked before it has been violated. In Strasbourg, there is little room for creativity and even less so for conflict avoidance. On the other hand, in the domestic legislative debate, ample room opens up for both. Provided that legislators are genuinely concerned about minimising the dilemma posed by many human rights clashes— should one right really be sacrificed to salvage the other?—they may be ideally situated to offer all human rights their due space. Sometimes, clashes between human rights can be avoided altogether. For instance, criminal and civil procedural law can and should be devised in such a manner as to allow all relevant parties to enjoy their right to a fair trial.48 In other situations, it might be possible to reach a compromise between human rights that would otherwise clash outright. A compromise implies that both rights give way to each other to some extent, so that both can be protected to the maximum extent possible. This is, for instance, possible in the context of demonstrations and counter-demonstrations.49 For the ECtHR, it is often much more difficult to find such creative solutions to human rights clashes, even if the case law provides interesting examples.50 Moreover, the legislative debate—at least in principle—creates the necessary space for public consultation of the affected stakeholders and/or citizens. If duly carried out, such consultation may act as an additional democracy-enhancing factor in the tackling of human rights clashes. This factor is, for obvious reasons, more difficult to include in judicial rulings. The above three reasons, particularly the democracy-enhancing ones, explain why it is prudent to grant national authorities some degree of leeway in resolving 48 ECtHR, Wynen and Centre hospitalier interrégional Edith-Cavell v Belgium (App No 32576/96, 5 November 2002) [2002] ECHR 715 [32]. 49  Öllinger (n 42) [48]. 50  The rare examples cited in nn 48 and 49 notwithstanding.

When Human Rights Clash in ‘the Age of Subsidiarity’ 67 human rights clashes. Nevertheless, they do not warrant the granting of an automatic and wide margin of appreciation in relation to each and every clash. Instead, several countervailing reasons explain why the national authorities are not necessarily better placed to deal with human rights clashes. The first countervailing reason hinges on the realisation that human rights clashes are—upon closer examination—not immune to the counter-majoritarian arguments discussed above. Indeed, in resolving human rights clashes, states may also cave into majoritarian bias and/or abuse of power. They may be prone to granting priority to human rights that are more clearly associated with a majoritarian interest. This process can be seen at work in Otto-Preminger-Institut v Austria, in which the Austrian authorities came down strongly against a private association’s freedom of expression in order to protect the interests of the 87 per cent Roman Catholic believers in Tyrol, (re)formulated in terms of their right not to be insulted in their religious feelings.51 When given ample leeway, as occurs when the ECtHR grants a wide margin of appreciation, states may also be prone to abuse their power by restricting certain ‘unpopular’ human rights to protect ‘more popular’ human rights. Otto-Preminger-Institut again serves as a case in point. But such abuse of power also occurs in relation to other human rights clashes, for instance, when political freedom of expression clashes with the right to reputation of politicians or heads of state.52 Crucially, in the above scenarios there is every bit as much cause as in ‘traditional’ human rights cases to insist on the countermajoritarian function of human rights, which precludes the automatic granting of a wide margin of appreciation. A second countervailing reason is related to the need to ‘soften’ bright-line rules adopted by national legislators. Indeed, the striking of a categorical balance between clashing human rights by way of legislation not only has the advantage of increasing legal certainty, it also comes with a risk of decreased individual justice. Insofar as bright-line rules preclude contextualisation, they will often be objectionable in and of themselves. For instance, legislation that would automatically grant priority to the right to private life whenever it clashes with freedom of expression would violate rather than uphold the indivisibility of all human rights. Therefore, the adoption of bright-line rules in national legislation should be an exceptional measure. In principle, the resolution of human rights clashes calls for contextualisation. Crucially, such contextualisation, intended to ‘soften’ the impact of rules laid down in national legislation, will usually be the business of the courts. For instance, the application of defamation legislation generally calls for contextualisation. In the event of dispute, such contextualisation is the prerogative 51 ECtHR, Otto-Preminger-Institut v Austria (App No 13470/87, 20 September 1994) [1994] ECHR 26 [52]. 52  See, for instance, ECtHR, Colombani and Others v France (App No 51279/99, 25 June 2002) [2002] ECHR 521, 361 (in which France restricted the applicants’ freedom of expression to protect the reputation of the King of Morocco); ECtHR, Cumpănă and Mazăre v Romania (App No 33348/96, 17 December 2004) [2003] ECHR 273 (in which Romania criminally convicted the applicants for having defamed a former deputy mayor and a judge).

68  Stijn Smet of the courts. Once this much is acknowledged, the reasons for the supranational ECtHR to rely on a principled position of deference in recognition of the greater legitimacy of national legislators drastically diminish. Indeed, if contextualisation in concrete human rights clashes is the prerogative of the courts, there is little reason to dispute the role of the ECtHR—which provides the ‘final authoritative interpretation’ of the ECHR53—in this regard. The third and final countervailing reason is related to doubts concerning the practical (im)possibility of national authorities in providing the optimal solution to human rights clashes. Although there are no principled reasons to doubt their ability to arrive at such an optimal solution, human rights practice demonstrates that national authorities are not necessarily capable or willing to do so. Paradoxically, one of the judgments in which the ECtHR has raised the claim that the national authorities are in principle ‘better placed’ to resolve human rights clashes immediately indicates why this is not necessarily the case.54 In Fáber, the Court explicitly granted the Hungarian authorities a principled wide margin of appreciation in tackling a clash between the rights to peaceful assembly of opposing groups, because the Court considered those authorities to be ‘best positioned’ to assess the security risks involved and to determine the measures needed to avoid them. Nevertheless, the Court found a violation, because the authorities had overestimated the security risk, which had led them to unduly restrict the applicant’s right to participate in a peaceful demonstration: [T]he freedom to take part in a peaceful assembly is of such importance that it cannot be restricted in any way, so long as the person concerned does not himself commit any reprehensible act on such an occasion … Given the applicant’s passive conduct, the distance from the [opposing] demonstration and the absence of any demonstrated risk of insecurity or disturbance, it cannot be held that the reasons given by the national authorities to justify the interference complained of are relevant and sufficient.55

Fáber indicates that, in practice, national authorities are not necessarily better placed to optimally resolve human rights clashes. In sum, strong reasons can be offered both in favour of and against the argument that states should be granted a wide margin of appreciation in resolving human rights clashes. While the reasons in favour offer principled support to the position, the countervailing reasons demonstrate the need to draw limits. One particularly promising avenue to accommodate both sets of reasons is to slightly revise the role of the margin of appreciation in human rights clashes. Under such a revised role, there would be no cause to automatically grant states a wide margin of appreciation in clashing rights cases, since doing so puts overzealous faith on

53 ECtHR, Opuz v Turkey (App No 33401/02, 9 June 2009) [2009] ECHR 870 [163]; Brighton Declaration (n 2). 54  For another example, see ECtHR, Ageyevy (App No 7075/10, 18 April 2013) [2013] ECHR 346 [144], [147] and [151]. 55  Fáber (n 23) [47].

When Human Rights Clash in ‘the Age of Subsidiarity’ 69 the first set of reasons (the democracy-enhancing reasons arguing in favour of the granting of a margin of appreciation). Instead, both sets of reasons can be joined in support of a ‘default’ position under which states are granted a ‘certain’ margin of appreciation in resolving human rights clashes, as opposed to a ‘wide’ one. The granting of such a ‘certain’ margin should not be an automatic process. Instead, there should be room for contextualisation, in the sense that the final breadth of the margin of appreciation should be determined with reference to the ‘traditional’ factors that the Court has employed throughout its case law.56 Those factors may lead the Court to broaden the margin, for instance, when there exists no European consensus on how a human rights clash is to be resolved or if a human rights clash involves sensitive moral or ethical issues.57 But they may also cause the Court to narrow the margin, for instance, when there exists a common European approach to the clash or because of the importance of (one of) the clashing rights at stake. Instances in which the margin should be reduced are thus, for instance, those in which a clash involves a most intimate aspect of an individual’s private life58 or when it involves political speech.59

VI. CONCLUSION

Throughout this chapter, I have argued for a revised substantive role for the margin of appreciation in human rights clashes. I have particularly argued that if the aim pursued by a human rights-restricting measure is the protection of another human right, the Court has cause to grant the national authorities—by default—a ‘certain’ margin of appreciation, since they are in principle well placed to provide a first attempt at resolving human rights clashes. However, I have insisted that the final determination of the breadth of the margin of appreciation should be made with reference to the ‘traditional’ factors from the Court’s case law, such as the absence/presence of a European consensus or the importance of the rights at stake. This picture, however, remains incomplete. It only addresses the substantive aspect of the issue and leaves the procedural question—what consequences does this have for the nature of the supervision exercised by the Court?—unaddressed. In respect of the procedural question, the most interesting recent development in the Court’s case law is the Court’s repeated insistence that it ‘would require strong reasons to substitute its view for that of the domestic courts’ where those courts 56 ECtHR, Chapman v UK (App No 27238/95, 18 January 2001) [2001] ECHR 43 [91]; ECtHR, Dudgeon v UK (App No 7525/76, 22 October 1981) [1981] ECHR 5 [52]; ECtHR, Handyside v UK (App No 5493/72, 7 December 1976) [1976] ECHR 5 [48]. 57  See, for instance, Evans (n 34) [81]; Fretté (n 37) [41]–[42]. 58 See, for instance, ECtHR, Godelli v Italy (App No 33783/09, 25 September 2012) [2012] ECHR 2035 [65]. 59 ECtHR, Lindon, Otchakovsky-Laurens and July v France (App Nos 21279/02 and 36448/02, 22 October 2007) [2007] ECHR 836 [46] and [48].

70  Stijn Smet have conducted the balancing exercise in line with the criteria from the Court’s case law.60 Yet—and this is crucial—this principle does not necessarily presuppose a wide margin of appreciation and, as a result, a marginal review by the ECtHR. On the contrary, in Axel Springer v Germany,61 one of two Grand Chamber cases that propelled the ‘strong reasons’ principle forward in the Court’s recent case law, the Court engaged in a detailed balancing exercise of its own to conclude that the one conducted at the national level had been erroneous.62 In that sense, the procedural move of the Court presupposed by the ‘strong reasons’ principle is arguably more congruent with the revised role for the margin of appreciation in human rights clashes I have proposed in this chapter, since it leaves more room than the ‘clashing rights’ principle for the Court to conduct its own substantive balancing exercise.

60 See

MGN Ltd (n 23) [150]; Axel Springer (n 6) [88]; Von Hannover (No 2) (n 42) [107]. Axel Springer (n 6). In the other Grand Chamber judgment, Von Hannover (No 2), the Court found no violation— and thus agreed with the assessment at the national level—but nevertheless embarked on a balancing exercise of its own to justify the finding of no violation. See Von Hannover (No 2) (n 42). 61 

62 

4 The Margin of Appreciation as an Underenforcement Doctrine DIMITRIOS TSARAPATSANIS

I. INTRODUCTION

T

O FIX IDEAS, consider the seminal James and Others v UK judgment of the European Court of Human Rights (henceforth ‘the Court’ or ‘ECtHR’) of 21 February 1986.1 It concerned a challenge to the Leasehold Reform Act 1967 as amended, which gave tenants residing in houses held on long leases the power to compulsorily purchase the freehold of the property. The applicants claimed, among other things, that the compulsory transfer of their properties amounted to a breach of their right to property, protected by Article 1 of Protocol No 1 (P1-1) of the European Convention on Human Rights (henceforth ‘ECHR’ or ‘the Convention’). They argued that they were deprived of their possessions despite the fact that the ‘public interest’ test, set out in the second sentence of Article 1 (P1-1), was not satisfied, since their properties were transferred from one individual to another for the latter’s private benefit. In settling the dispute, the Court invoked the judge-made2 margin of appreciation (henceforth ‘MoA’) doctrine to find that: Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is ‘in the public interest’ … Furthermore, the notion of ‘public interest’ is necessarily extensive. In particular, as the Commission noted, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues on which opinions within a democratic society may reasonably differ widely. The Court, finding it natural that the margin of appreciation available to the legislature in implementing 1 

James and Others v UK, 21 February 1986 (Series A No 98). The term ‘margin of appreciation’ is not contained in the original text of the Convention. It was first mentioned by the former European Commission of Human Rights in its decision of 26 September 1958 concerning the inter-state application Greece v UK and was subsequently expressly taken up by the Court in the case of Ireland v UK of 18 January 1978 (Series A No 25 at para. 207). Protocol No 15 amending the Convention, which was adopted by the Committee of Ministers of the Council of Europe in February 2013, explicitly mentions the MoA. Protocol No 15 was opened for signature on 24 June 2013 and will enter into force as soon as all States Parties to the Convention have signed and ratified it. 2 

72  Dimitrios Tsarapatsanis social and economic policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the public interest’ unless that judgment be manifestly without reasonable foundation. (Paragraph 46, emphasis added)

Now, let us suppose that the standards of correct interpretation and application of Article 1 (P1-1) of the Convention are ultimately determined by the best substantive theory of human rights, whatever that theory might turn out to be (or, for those who think these do not amount to the same thing,3 by the best substantive theory of Convention rights). On that assumption, the Court’s reasoning in the James case is an illustration of the phenomenon that constitutional theorist Lawrence Sager dubs ‘underenforcement of legal norms’.4 By invoking the MoA, the James Court declined to examine whether the deprivation of the applicants’ properties amounted to a violation of Article 1 (P1-1) of the Convention under the best understanding of the right to property. Instead, the Court lowered its standard of review, satisfied that the choices made by the British legislature were not ‘manifestly without a reasonable foundation’. Therefore, Article 1 (P1-1) was underenforced in the sense that the Court invoked the MoA in order to justify the Article’s application under a suboptimal understanding of Convention rights, giving leeway to the respondent state. Several prominent judges and scholars think that this aspect of the MoA is deeply problematic. Their objections take the following general form. First, they claim that the Court is vested with the responsibility, formulated in Article 32 (1) of the Convention, to interpret and apply the Convention and its Protocols following the lodging of individual applications, in order to ensure observance by the States Parties and protect human rights.5 Second, they stress that it is generally accepted, not least by the Court itself, that this responsibility standardly requires determining whether a violation of a Convention right took place independently of the views held by the respondent states.6 Hence, they insist, underenforcement through the MoA is either an abdication of the Court’s interpretive responsibility

3  Whether an account of Convention rights maps perfectly onto a general account of human rights or whether there are substantial discrepancies between the two is an open and much-debated question, on which this chapter shall not take sides. In what follows, I shall simply refer to ‘Convention rights’, leaving open the possibility that the rights contained in the text of the ECHR are reducible to human rights simpliciter. 4 See L Sager, ‘Fair Measure: the Legal Status of Underenforced Constitutional Norms’ (1978) 6 Harvard Law Review 1212, 1213. 5  See, for instance, the partly dissenting opinion of Judge De Meyer to the Z v Finland judgment of 25 February 1997: ‘In the present case the Court once again relies on the national authorities’ “margin of appreciation”. I believe that it is high time for the Court to banish the concept from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies … where human rights are concerned, there is no room for a margin of appreciation which would enable the States to decide what is acceptable and what is not.’ 6  See, on this point, the Court’s well-established case law on ‘autonomous concepts’, which was inaugurated by the 1976 Engel and Others v The Netherlands case (Series A No 22). For discussion of the ‘autonomous concepts’ method, see G Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15(2) European Journal of International Law 279.

The MoA as an Underenforcement Doctrine 73 or else a doctrine that smacks of relativism.7 In a nutshell, their argument to this conclusion seems to run as follows. The content and scope of Convention rights depend on substantive considerations. It is either the case that states’ views figure among these considerations or not. If the latter, then the MoA appears to be an abdication of the Court’s responsibility to make up its own mind on the relevant considerations and to use them as a critical standard in order to evaluate the states’ behaviour.8 If the former, then the MoA assumes that states’ views determine the content of Convention rights. But this seems like the very essence of relativism. And many people justifiably think that relativism cannot serve as a robust foundation for Convention (or human) rights.9 In this chapter I attempt to provide an understanding of the underenforcement aspect of the MoA that can deflect some of the above criticisms. The key idea is that substantive considerations about the content of Convention rights tell only part of the story of what a workable scheme of internationally justiciable Convention rights is. The other part is told by institutional considerations. These are considerations that apply to the Court qua decision-maker by virtue of its particular institutional role in a shared scheme of human rights governance across the Contracting States of the Council of Europe. My aim is to highlight the function of these considerations in explaining and justifying the MoA as an underenforcement doctrine. My claim is not that underenforcement is all there is to the MoA. Rather, I suggest that underenforcement on institutional grounds is one plausible reading of some uses of the MoA. There may well be others, with which the present chapter does not take issue.10 Throughout, the argument is exploratory rather than conclusive. I intend to put underenforcement on the table of potentially plausible alternatives, rather than provide a full defence. The chapter unfolds as follows. I begin with a general discussion of underenforcement, placing the ­phenomenon within a more general theoretical framework. This opens up the way for a conceptualisation of the MoA as an underenforcement device. I then turn my attention to explanations of the MoA as a rational judicial strategy under conditions of resource-bounded rationality. Last, I offer an initial and tentative normative defence of underenforcement uses of the MoA in terms of subsidiarity and shared responsibility between the Court and States Parties in the implementation of ­Convention rights. If I am right, then views criticising the MoA on the sole basis that it falls short of implementing optimal substantive theories of C ­ onvention rights miss their target.

7  See, among many others, the opinion of Judge De Meyer (n 5); and E Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1998–99) 31 New York University Journal of International Law and Politics 843. 8  See, with particular reference to the role of ‘consensus’ in determining the width of the MoA, G Letsas ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705. 9  Judge De Meyer (n 5); and Benvenisti (n 7) 844. 10  For some of these other uses, see Letsas (n 8).

74  Dimitrios Tsarapatsanis II.  UNDERENFORCEMENT, INSTITUTIONAL CONSIDERATIONS AND THE MoA

What does it mean to say that the Court underenforces Convention rights? In the relevant literature, more than one attempt has been made to characterise the phenomenon of underenforcement. The rough idea is to distinguish between two ways of implementing any given legal norm: either ‘in full’ or ‘only to a certain extent’. Underenforcement would fall squarely within the second category. Lawrence Sager, who coined the term,11 has in the past proposed unpacking this idea in terms of a distinction between ‘concepts’ and ‘conceptions’.12 According to Sager, the concept/conception distinction corresponds to a distinction between ‘the full conceptual limit’ of a legal norm and a kind of enforcement of the norm that falls short of implementing that conceptual limit.13 More recently, Richard Fallon has suggested that the distinction underpinning underenforcement is between the ‘meaning’ and the ‘implementation’ of a legal norm.14 Both authors seem to point to a crucial difference between the general formulation of a legal norm and an application (or implementation)15 of that same norm by a given institutional agent to a particular case or class of cases such that, for reasons that apply specifically to the agent, the general norm is not fully applied. Even though the distinction highlighted by Sager and Fallon seems intuitively plausible, achieving greater clarity in relation to it can be particularly elusive. One important source of difficulty springs from the fact that, when it comes to considering legal norms and their implementation, there are different and contestable ways of carving up the conceptual field. Of particular relevance is the fact that a sharp distinction between the existence and the implementation of a legal norm seems to make much more sense from a positivist than from an anti-positivist theoretical perspective.16 Authors of a positivist bent frequently speak of the law as a system of norms or rules. They suggest that legal norms are abstract entities instantiating properties such as validity.17 They also frequently claim that these norms can be identified independently of their application to particular cases, through recourse to the law’s social sources.18 Many positivists thus contend that the application of legal norms only takes place at a later, c­ onceptually

11 

Sager (n 4). The concept/conception distinction has been popularised by John Rawls. See J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971) 5. 13  Sager (n 4) 1213–14. 14  R Fallon, Implementing the Constitution (Cambridge, MA, Harvard University Press, 2001) 38–39. 15  Fallon (ibid 37–38) reserves the term ‘implementation’ to denote an activity that is wider than the mere application of norms. In this chapter, though, and since nothing hinges on this, I shall treat both terms as roughly equivalent. 16  On interpretivist theories of law, see N Stavropoulos, ‘Legal Interpretivism’, entry in the online Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/law-interpretivist). 17  For a classic statement of such a view, see H Kelsen, Introduction to the Problems of Legal Theory (Oxford, Clarendon Press 1992) 12–13. 18  See generally J Raz, The Authority of Law (Oxford, Clarendon Press, 1979). 12 

The MoA as an Underenforcement Doctrine 75 second stage.19 However, some anti-positivists, most famously Ronald ­Dworkin,20 generally prefer to talk about ‘propositions of law’ by means of which legal rights and duties are reported at different levels of abstraction, without relying on a sharp distinction between independently identifiable legal norms and applications of those norms to particular cases.21 In the present chapter, I shall attempt to take these important jurisprudential nuances on board by proposing an abstract ­characterisation of underenforcement. My proposal is this. A legal norm is underenforced when there is a substantial gap between the ways in which the norm should be enforced in the absence of institutional considerations that apply to the enforcing agent, as compared to the ways in which the norm should be enforced by that same agent in the presence of these considerations. This characterisation of underenforcement avoids any talk of ‘conceptual limits’ or ‘meanings’ of legal norms. Instead, it sets out a rough counterfactual test. The core idea is to imagine a decision situation in which institutional considerations were absent in order to capture intuitively their distinctive contribution to outcomes, without assuming, along with a number of leading positivists, that legal norms are to be understood as reified entities having some kind of pre-existing ‘full conceptual content’. As formulated, the characterisation rests on three crucial ideas. First, it introduces a distinction between the existence and the enforcement of a legal norm. In the way in which I intend to use it in this chapter, the expression ‘legal norm’ is theoretically innocuous and remains neutral as regards rival conceptions of the nature of law. It refers merely to general propositions reporting legal content, ie, to general formulations of legal rights and duties, without taking a stance on the kinds of facts that figure among the determinants of such content.22 The distinction thus simply reaffirms the common-sense intuition shared by most lawyers that, once legal content is identified and formulated in general terms, there is a further step to be taken in order to apply it to a concrete case or to a class of cases. Second, the characterisation deploys the concept of enforcement. It is crucial to emphasise that ‘enforcement’ is used here as an all-encompassing term. The term refers, first and foremost, to activities that include the application of legal norms. These activities typically aim at suitably connecting general legal norms with concrete sets of facts and they should be familiar enough to lawyers and judges arguing about whether individual cases actually fall under the extension of legal concepts. I intend to add a further conceptual component to this traditional view of enforcement-as-application. To that effect, throughout this chapter, the 19 See, for example, J Coleman, ‘Negative and Positive Positivism’ (1982) 11 Journal of Legal Studies 139. 20  See generally R Dworkin, Law’s Empire (Cambridge, MA, Harvard University Press, 1986). 21  Stavropoulos (n 16). 22  In particular, no stance is taken on whether moral facts figure among the determinants of legal content. This question is at the heart of the dispute between positivist and anti-positivist theories of law; see M Greenberg, ‘How Facts Make Law’ (2004) 10 Legal Theory 157.

76  Dimitrios Tsarapatsanis term ‘enforcement’ shall also refer to a shared scheme of concretisation of a legal norm that links the implementing actor to other actors, with which the first actor shares institutional responsibility.23 ‘Enforcement’ in this second sense comprises, for example, the creation by a given court of a doctrinal test that renders the content of an abstract legal norm more concrete and at the same time directs other courts to apply that test in lieu of directly applying the abstract and general legal norm itself.24 Third, the characterisation brings into play institutional considerations as a distinct kind of consideration and connects them to underenforcement. Under the characterisation, an agent underenforces a legal norm because special considerations of an institutional nature apply to her. Some of these reasons are to do with the nature and limits of an agent’s institutional role vis-à-vis other agents.25 Crucially, these reasons have a relational aspect. They can only be adequately identified once the agent is placed within a wider institutional context that comprises the relationships, responsibilities and specific interaction that the agent entertains with other agents within a shared scheme of governance. Underenforcement thus typically opens up the possibility of sharing enforcement of legal norms with other institutions in a common scheme of governance. The kinds of institutional considerations that decision-makers ought to take into account crucially depend on their make-up and specific characteristics, as well as the kind of relationships that the decision-maker entertains with other institutions within the common scheme. In developed legal systems, most such schemes are characterised by complex patterns of institutional division of labour. By assigning the primary task of answering certain questions to other institutions, underenforcement helps to allocate decision-making authority in pursuit of a common goal. Other institutional considerations derive from intrinsic features of the enforcing agent. These features place constraints on the kinds of decision procedures that the agent should adopt when enforcing legal norms under conditions of bounded rationality, uncertainty and finite resources.26 So, institutional considerations may be such as to explain or justify underenforcement. The important point to note is that institutional considerations as a whole are to be distinguished from substantive reasons, which I shall roughly define as reasons that make reference, in law-applying contexts, to the particular merits of the case in the absence of institutional reasons. By this point, it should have become readily clear why the MoA lends itself naturally to an underenforcement reading. Recall that in the James case mentioned in the introduction, the Court lowered its standard of review of the measures taken by the British authorities on two grounds. First, the measures were not ‘manifestly without a reasonable foundation’ given the public interest goal pursued. Second, 23 

Fallon (n 14) 42. ibid 38. 25  A Kavanagh, ‘Judicial Restraint in the Pursuit of Justice’ (2010) 60 University of Toronto Law Journal 23, 27. 26 See generally A Vermeule, Judging under Uncertainty (Cambridge, MA, Harvard University Press, 2006). 24 

The MoA as an Underenforcement Doctrine 77 British authorities were ‘better placed’ than the Court itself to balance the right to property with the public interest aim.27 There are at least two features that make such invocations of the MoA instances of underenforcement of the Convention in the intended sense. To begin with, like the US Supreme Court and many other constitutional and supreme courts around the world,28 the Court frequently refrains from reviewing the decisions of national authorities under the best substantive theory of Convention rights. Instead, the Court’s review consists in using a ‘reasonableness’ standard, asking whether States Parties exceeded it or not.29 Moreover, the Court explicitly states that the underenforcement of Convention rights is justified on institutional grounds, to wit, by the fact that domestic authorities are ‘better placed’ than the Court itself to assess various kinds of limitations to Convention rights.30 In addition, far from being relegated to several isolated examples, this approach is prevalent in numerous areas of its case law.31 Among other things, the Court uses it when it comes to assessing limitations to the rights protected by Articles 8–11 of the Convention. Regarding these Articles, the Court frequently resorts to the argument that the absence of consensus among States Parties affords the latter an MoA in the determination of limitations to Convention rights, typically through balancing these rights with the realisation of collective goals, such as public order, security, health or morals.32 Conceiving of the MoA as an underenforcement doctrine explained and justified by institutional considerations deflects some of the standard objections marshalled against it. Recall that, in insisting that underenforcement is an abdication of the Court’s interpretive responsibility, critics of the MoA standardly presuppose that examining the merits of each individual case exhausts the Court’s role. Now, the MoA appears to be a doctrinal device whereby cases are decided on grounds other than their merits. By criticising the MoA for this reason, detractors thus

27 

James and others (n 1) [46]. To provide just one random example, the French Constitutional Council (Conseil constitutionnel) commonly resorts to the argument that its ‘power of appreciation’ is not the same as that of the legislature, in order to lower its standard of review of the constitutionality of Parliament’s acts. See, among many other authorities, its recent decision no 2013-341 QPC of 27 September 2013 at para 6 (available at www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000028017685). 29  For an extensive overview of the recent case law of the Court, see Jan Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights 324. 30  For the first such use of MoA, see Ireland v UK of 18 January 1978 (Series A No 25) at para 207. The Court’s dictum has been consistently used in the quasi-totality of cases invoking the MoA to find in favour of the respondent state. 31 For an overview, see HC Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (The Hague, Kluwer International, 1996); E Brems, ‘The Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights: Compliance or Cross-Purposes’ (1996) 56 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 240; Stephen Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Strasbourg, Council of Europe Publishing, 2000); Kratochvíl (n 29). 32  For an overview and a critical analysis of the Court’s case law regarding arts 8–11 on limitations of Convention rights on grounds of public morals, see G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford, Oxford University Press, 2009) 92–98. 28 

78  Dimitrios Tsarapatsanis s­ imply assume that uses of the MoA could be justified only by some form of relativism by virtue of which the content of Convention rights would depend on the moral conceptions of Member States33 or by giving leeway to some kind of utilitarian calculus threatening the very concept of human rights.34 However, if one takes the view that institutional considerations can explain and justify the underenforcement of Convention rights, then one need make no concessions either to relativism or to utilitarianism. An objectivist (as opposed to relativist) or liberal (as opposed to utilitarian) theory of Convention rights is fully compatible with the claim that objectively identifiable liberal rights are to be enforced in ways that depend in part on equally objective reasons that apply to the enforcing agent because of her particular institutional position and characteristics. So, underenforcement uses of the MoA would be salvaged, since they could be justified by taking into account institutional considerations applying specifically to the Court qua enforcing agent.

III.  EXPLAINING THE UNDERENFORCEMENT OF CONVENTION RIGHTS: RESOURCE-BOUNDED ENFORCEMENT OF THE ECHR

If I am right, the hallmark of underenforcement uses of the MoA consists in the abandonment of an optimal understanding of the content of Convention rights in favour of a looser ‘reasonableness’ test on institutional grounds. In other words, the MoA would imply a suboptimal enforcement of the ECHR to individual cases. Such an approach could be explained and justified in many ways.35 Given the limited purposes of the present chapter, I shall here only briefly sketch two kinds of arguments. To begin with, in this section I shall present a number of explanatory considerations pertaining to the underenforcement of the MoA due to the resource-bounded rationality of the Court. The core idea is that underenforcement can be explained by taking into account the fact that, even if issues to do with motivation and strategic interaction between agents disagreeing about the optimal understanding of the Convention were absent,36 the effective application of the ECHR requires the use of scarce cognitive resources. Underenforcement can thus be explained as a rational strategy of deployment of these resources under conditions of pervasive uncertainty in a context of wider institutional cooperation. In the next section, I shall outline a normative argument designed at making more plausible the idea of a proper institutional division of labour between the Court and national authorities.

33 

Benvenisti (n 7) 844. Letsas (n 8) 729. 35  For some of these ways, see D Tsarapatsanis, ‘The Margin of Appreciation Doctrine: A Low-Level Institutional View’ (2015) 35 Legal Studies 675. 36 See generally A Vermeule, The System of the Constitution (New York, Oxford University Press, 2011). 34 

The MoA as an Underenforcement Doctrine 79 In what sense is the Court a resource-bounded institutional agent? A useful way of introducing resource-boundedness in legal interpretation is by distinguishing between ideal as opposed to non-ideal judicial decision making. Historically, the idealisation of agents’ capacities has been widely used to model decision theory and the theory of rational choice, especially in neoclassical economics.37 In legal contexts, ideal judicial decision-making would be the decision-making of an omniscient legal interpreter under ideal conditions, say that of judges who are fully rational at least in the sense of holding perfectly consistent sets of beliefs and preferences, they are fully informed, perfectly well motivated and capable of deliberating without time restrictions, akin to Dworkin’s Hercules.38 Qua ideal interpreters, courts are to be modelled as frictionless institutions whose activity bears no decision, correction or information costs. Now, the idealisation of the various capacities of agents frequently serves to define an optimum by reference to which normative standards applying to non-ideal agents are defined. The task assigned to non-ideal agents would be to approximate as well as they can the ideal standard. In judicial contexts, idealisation approaches imply that courts ought to rely on optimal understandings of the law or approximate those understandings as best they can. To take an example, if the ‘moral reading’ of the ECHR were to be considered, arguendo, as the best theory of interpretation of the Convention,39 the activity of non-ideal interpreters would be assessed by reference to this optimal interpretive benchmark. Transposed, say, to the James case cited in the introduction, this approach would imply that the Court should have either attained or approximated the workings of an ideal enforcer. As a result, it should have tried to identify the optimal moral understanding of the right to property and apply it to the case at hand. Far from adopting a ‘reasonableness’ standard, as it actually did, and irrespective of the fact that it is a non-ideal agent, the Court should have taken up the Herculean task of providing such an optimal understanding because its role would be identified by reference to such an ideal standard. So from the vantage point of such a benchmark, the Court would have straightforwardly failed to discharge its interpretive duty.40 Nevertheless, it is well known that ideal cognitive and motivational capacities do not exist in the actual world. Human epistemic agents are in the grip of what philosopher and cognitive scientist Christopher Cherniak calls the ‘finitary predicament’:41 their cognitive resources are limited. As a result, human agents’ rationality is resource-dependent or bounded. In general, bounded rationality approaches,

37  For an overview, see P Weirich, Realistic Decision Theory: Rules for Nonideal Agents in Nonideal Circumstances (New York, Oxford University Press, 2006). 38  On the ideal judge Hercules, see R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977) ch 4. 39  On the ‘moral reading’ of the ECHR, see G Letsas, ‘The ECHR as a Living Instrument’ in A Føllesdal, B Peters and G Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (New York, Cambridge University Press, 2013). 40 ibid. 41  See C Cherniak, Minimal Rationality (Cambridge, MA, MIT Press, 1986).

80  Dimitrios Tsarapatsanis whether in law or in other domains, challenge models of human d ­ ecision-making based on idealisation strategies. Instead of supposing that optimal normative standards set the benchmark against which the activity of non-ideal agents should be evaluated, these approaches purport to accommodate cognitive limitations by lowering the relevant normative standard itself. Resource-bounded approaches thus focus on how agents with limited information, time and cognitive capacities rationally ought to make judgments and decisions. These approaches have become particularly prominent since the 1970s, when an impressive array of experimental results suggested that human agents reason and decide in ways that systematically violate the formal canons of rationality.42 Bounded rationality models attribute at least part of the explanation for these shortcomings to the lack of cognitive resources available to these agents in particular circumstances. Charting the actual limits of these resources is an important part of cognitive science and empirical psychology. Both conceptualise the human mind as a finite informationprocessing device, strictly limited with regard to its memory, attention and computation capacities.43 Empirical findings pertaining to the bounded cognitive resources of finite agents impact on understandings of the normative benchmark against which to evaluate the cognitive performance of finite agents in the following way. Instead of supposing, as idealisation approaches generally do, that the task of these agents is to approximate ideal decision-making as best they can, bounded rationality accounts ask which reasoning strategies agents with cognitive resources ought to follow in order to reliably attain sets of specified epistemic goals for different kinds of environments.44 Accordingly, the strategies identified are resource-dependent: they are tailored to the actual cognitive abilities and resources of finite agents. Resourcedependence as a constraint on the selection of reasoning strategies can be justified in two ways. The first appeals to ‘ought-implies-can’ considerations. In a nutshell, the argument is that it is not rational to ask of agents that they comply with epistemic norms, compliance with which is impossible, given the agents’ actual cognitive set-up.45 Whilst the exact meaning of the ‘can’ part of this ‘ought-implies-can’ constraint has turned out to be controversial,46 it still clearly rules out at least certain kinds of reasoning strategies (eg, those that are computationally intractable in the absence of infinite time). The second appeals to cost/benefit considerations.47 It follows from resource-relativity that reasoning strategies come at varying costs. Some can be more expensive than others. Identifying reasoning strategies at acceptable cognitive costs thus forms a major part of the motivation behind 42 

For an overview, see D Kahneman, Thinking Fast and Slow (New York, Farrar, Straus & Giroux, 2011). BE Goldstein, Cognitive Psychology: Connecting Mind, Research and Everyday Experience (Belmont, Wadsworth, 2011). 44  See G Gigerenzer and R Selten, Bounded Rationality: The Adaptive Toolbox (Cambridge, MA, MIT Press, 2001). 45 P Thagard, ‘From the Descriptive to the Normative in Psychology and Logic’ (1982) 49(1) Philosophy of Science 24. 46  See, eg, R Feldman and E Conee, ‘Evidentialism’ (1985) 48 Philosophical Studies 15. 47 See generally M Bishop and JD Trout, Epistemology and the Psychology of Human Judgment (Oxford, Oxford University Press, 2005). 43 See

The MoA as an Underenforcement Doctrine 81 resource-bounded approaches. Here again, one main idea is that reliability can be traded off against other values, such as speed in decision making.48 Moreover, reliability can be the collective outcome of the distribution of tractable cognitive tasks between various cooperating agents rather than the result of the exercise of a solitary agent’s cognitive capacities.49 This general point about the efficient deployment of scarce cognitive resources also applies to judicial decision-making and thus to the ECtHR. In the real world, courts function under non-ideal conditions. Judges’ rationality is bounded,50 their access to pertinent information is limited, their information-processing capacity is both restricted and in the grip of various cognitive biases, their memory and attentional resources are restricted,51 and they are under relentless time pressure, amplified by the ever-increasing volume of their caseload. Under these circumstances, resource-bounded approaches underline that it is not enough that reasoning strategies score high on the reliability dimension, as idealisation approaches generally suppose. It is important that they also come at an acceptable cost with regard to the finite cognitive resources of judges. Thus, to come back to the problem of enforcement of the ECHR, resource-bounded models of decision-making insist that reasoning strategies connecting political morality with the content of Convention rights, such as the moral reading of the ECHR, take account of the limitations of judges’ cognitive resources. Even if the relevant moral and empirical facts would be accessible to idealised, ie, resource-independent, judges, resource-bounded approaches maintain that we still ought to ask, first, whether these facts are also in principle accessible to resource-dependent judges and, second, at what costs. Now, considerations to do with the resource-dependence of judicial decisionmaking appear to be able to straightforwardly explain instances of underenforcement doctrines, such as the MoA. The core idea is that finite bona fide judicial agents can rationally choose to simplify their cognitive tasks by sometimes opting for a lower ‘reasonableness’ standard of review than for review based on an optimal understanding of the relevant standard. In the context of the ECHR, this is especially the case when the Court is justifiably uncertain about the consequences of its decisions, both in relation to the merits of the individual case before it and to its more wide systemic effects, insofar as these effects can alter the enforceability of European-wide understandings of Convention rights. In cases of uncertainty, the Court can use underenforcement doctrines, such as the MoA, to outsource decision-making to trusted national authorities if it has reason to believe that these decision-makers may be more reliable, with respect to a certain range of issues, than the Court itself. Moreover, such a practice can result in considerable time savings, which is also an independently identifiable crucial variable.

48 ibid.

49  F D’Agostino, Naturalizing Epistemology: Thomas Kuhn and the ‘Essential Tension’ (Basingstoke, Palgrave Macmillan, 2010). 50  Vermeule (n 36) 154–56. 51  For an overview, see N Lavie, ‘Distracted and Confused? Selective Attention under Load’ (2005) 5 Trends in Cognitive Science 75.

82  Dimitrios Tsarapatsanis We can use two kinds of examples from the Court’s case law to briefly illustrate these general points. To begin with, there are situations, such as the one exemplified in the James case cited in the introduction, in which determining whether a violation of the Convention actually took place seemingly requires subtle processing of particularly complex empirical information. In cases such as James, which are to do with reviewing the economic and social policy of States Parties,52 it is doubtful whether the Court can process empirical information more reliably than national institutions. Typically, in such cases, implementation of the Convention takes the form of a rather complex cognitive cooperation between institutions: legislatures set out general norms, the executive uses its expertise to further concretise these norms and domestic courts, at least in States Parties that have incorporated the Convention into their domestic law,53 independently check for ECHR violations. It could thus make sense to allocate a substantial part of the decisionmaking power to national institutions via the MoA under two broad conditions. First, the Court must have good reason to trust that the decision-making competence of the institutions to which a substantial part of decision-making power is allocated is higher than its own. If that is not the case, for example, because the Court has found out from its own experience that a particular Member State’s judicial institutions systematically fail to protect certain kinds of rights or that the Court itself can do a better job of protecting those rights, then it has a powerful countervailing reason to review from scratch the decisions of national authorities. Second, insofar as the Court uses the MoA to underenforce but not to refuse to enforce Convention norms, it has to discharge its duty of reviewing alleged breaches of Convention rights by establishing a workable threshold and by making clear to national authorities that decisions above that threshold will trigger a full exercise of the Court’s powers of review. Again, this is exactly what happened in the James case, in which the Court explicitly said that the determination of the concept of public interest by the British legislature was deemed to be in accordance with the Convention because the legislature’s judgment was not found to be ‘manifestly without a reasonable foundation’. As a second example, take time. Suppose that part of the difficulty of deciding cases under a moral reading of the ECHR stems from the fact that complex factors have to be taken into account, which judges do not have enough time to calculate in their totality, in order to arrive at an acceptable degree of certainty. If the Court had more time, it could arguably score better on the reliability dimension through attempting to work out the interplay between these complex factors. However, the Court does not have infinite time. In fact, its time is a particularly scarce resource, which it has to allocate in both an efficient and a just way. Again, depending on the circumstances in which it is placed, the Court can sometimes reasonably trade off marginal increases in reliability for speed by following ­underenforcement 52 

For an overview of the Court’s case law in this area, see Tsarapatsanis (n 35) 694–97. L Helfer, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’ (2008) 19(1) European Journal of International Law 125, 141–49. 53 

The MoA as an Underenforcement Doctrine 83 doctrines, which bring into play the cognitive capacities of national authorities. Following Andrew Coan,54 we can use the expression ‘judicial capacity’ to refer to the actual ability of the Court to adequately handle a given volume of cases within a given amount of time, whilst assuming the Court’s adherence to certain qualitative standards of decision-making. Now, despite the fact that many writers frequently point to the ‘case overload crisis’ confronted by the Court,55 to this day no systematic attempts appear to have been made to proceed to a specific ­analysis of judicial capacity qua institutional consideration and to link it to underenforcement doctrines, such as the MoA. However, such a link appears quite direct, since capacity is intimately related to the allocation of time as a scarce cognitive resource. In the Court’s case, the demand to decide cases in a timely and efficient manner is formally recognised as a special judicial duty, unambiguously set out in Article 6 of the Convention. Underenforcing Convention rights through uses of the MoA, which entails sharing enforcement responsibility with national institutions, can remedy ‘the mismatch between the Court’s workload and its capacity’.56 One leading idea is for the Court to allocate more time and resources to the examination of so-called ‘priority cases’57 than to cases for which it can reasonably assume that national enforcing authorities will be at least equally apt at dealing with. Besides, underenforcement through the MoA is exactly how the Court has proceeded in cases in which national courts have already provided detailed legal analysis based on the principles and criteria set out in the Court’s case law. In these cases, the Court has used the MoA to suggest that departures from the outcome arrived at by national courts are acceptable only for ‘strong reasons’. For example, in the Palomo Sánchez and Others v Spain case, which was about balancing the right to freedom of expression under Article 10 of the Convention with the right to protection of one’s reputation, the Court held that: If the reasoning of the domestic courts’ decisions concerning the limits of freedom of expression in cases involving a person’s reputation is sufficient and consistent with the criteria established by the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts.58

My suggestion is that the use of the MoA as an underenforcement doctrine in cases such as Palomo Sánchez can be explained by capacity concerns. It can be rational for the Court to cut down on its decision costs by externalising part of these costs to national judicial institutions. The rationality of such outsourcing hinges on national courts using the Court’s criteria to determine whether an infringement 54  A Coan, ‘Judicial Capacity and the Substance of Constitutional Law’ (2012) 122 Yale Law Journal 100, 102. 55 See, eg, S Greer, ‘What’s Wrong with the European Convention in Human Rights?’ (2008) 30 Human Rights Quarterly 680. 56  ibid para 5. 57  ibid para 24. 58  Palomo Sánchez and Others v Spain [GC], Nos 28955/06, 28957/06, 28959/06 and 28964/06, 12 September 2011 at para 57; in the same vein, see MGN Ltd v UK, No 39401/04, 18 January 2011 (at para 141) and Axel Springer AG v Germany (No 2) [GC], Nos 40660/08 and 60641/08, 7 February 2012 (at para 88).

84  Dimitrios Tsarapatsanis of the ECHR took place. This implies that national courts will arrive at decisions which reflect the Court’s own mode of reasoning. The Court will then pass judgment on the cases without having to examine anew all the relevant factors. Accordingly, it will be in a position to decide cases more quickly, thus enhancing its overall capacity.

IV.  JUSTIFYING THE UNDERENFORCEMENT OF CONVENTION RIGHTS: NORMATIVE INSTITUTIONAL CONSIDERATIONS

Let us suppose, arguendo, that resource-bounded accounts are on the right track when it comes to providing an explanation of underenforcement uses of the MoA. Still, it could be argued, resource-boundedness can only provide an extremely thin normative basis for such uses. After all, every agent that is under a duty to enforce the ECHR is resource-bounded, be it the Court or national authorities, including national courts. As already observed, underenforcement through the MoA, which implies qualified deference to the decisions made by national authorities on the resolution of disputes to do with Convention rights, can be fully justified, if at all, only by appealing to normative institutional considerations aimed at the proper division of power between the Court and national authorities. In this last section, I shall briefly chart three such kinds of considerations in order to lend some normative plausibility to underenforcement uses of the MoA. These pertain, first, to shared responsibility in the enforcement of the ECHR between the Court and national authorities, second, to subsidiarity and, third, to legitimacy concerns.

A.  Shared Responsibility Whilst it is true that the ECtHR is a judicial institution whose duty is to resolve disputes involving individuals on alleged violations of Convention rights,59 reducing the Court’s function to that of a dispute resolution mechanism would be a mistake. In fact, the Court is placed within a wider and complex division of institutional labour. First, the Court typically supervises national institutions on Convention matters. Lacking democratic legitimacy of its own, it must make use of its institutional independence with care, paying due respect to the political decisions of democratically elected national legislatures.60 Second, the Court must also pay attention to the systemic effects of its judgments in the overall project

59  Technically, decisions by the Court only have an inter partes legal effect; it is debatable whether they also have erga omnes legal force and, if so, on what basis. See Judge Boštjan M Zupancic, ‘Constitutional Law and the Jurisprudence of the European Court of Human Rights: An Attempt at a Synthesis’ (2001) 2 German Law Journal (available at www.germanlawjournal.com/index.php?pageID=11&artID=30). 60 See generally D Kyritsis, ‘Constitutional Review in Representative Democracy’ (2012) 32(2) Oxford Journal of Legal Studies 297, 315–18.

The MoA as an Underenforcement Doctrine 85 of the enforcement of the Convention.61 Thus, far from merely interpreting the ­Convention or applying it to individual cases under its best understanding of Convention rights in the abstract, the Court also assumes a central coordinating role in enforcing it by closely cooperating with national authorities. Enforcement of the Convention is not a task that various national and supranational institutions could perform in isolation. Rather, it is a collective endeavour, which requires meticulous efforts at close collaboration. In this joint endeavour, the Court and national institutions enter as partners. At the very least, this entails that the Court ought to take its partners’ bona fide judgments regarding the content of Convention rights seriously, especially insofar as some partners wield democratic legitimacy. Because of the partnership, national institutions are jointly responsible with the Court for respecting and promoting Convention rights. This collaborative aspect is recognised by Article 1 of the Convention, which makes it a duty for national authorities to protect and uphold Convention rights.62 Likewise, Article 13 instructs States Parties to provide effective domestic remedies for individuals alleging violations of their ECHR rights.63 Moreover, most States Parties have incorporated the Convention into their domestic legal systems, thus creating an obligation addressed to national legislatures and courts to comply with the ECHR and use it actively in their own decision-making.64 Under the ECHR partnership, the Court trusts that national institutions shall use their distinctive abilities and resources to give pride of place to its reasoning, so as to infuse their decision-making with Convention rights considerations in their ordinary functioning.65 Combining considerations of resource-boundedness along with those stemming from joint responsibility with national authorities in the enforcement of the Convention can justify underenforcement uses of the MoA in the following way. Under conditions of uncertainty, bounded rationality and time pressure, members of the Court are sometimes confronted with a difficult institutional choice: should they always try to identify as best as they can the relevant substantive considerations of the case at hand irrespective of their relationships with national institutions or should they rather, at least in some circumstances, invoke the MoA to underenforce the Convention and defer to the judgment of national institutions if they are justified in thinking that these institutions are more likely to reach a correct decision? Reasons of trust suggest that deference to bona fide partners can sometimes be a justified option. Under certain circumstances, the Court can legitimately conclude that national institutions, because of their specific 61  On some of these systemic effects, see Helfer (n 53) 134–38; L Helfer and E Voeten, ‘International Courts as Agents of Legal Change: Evidence from the LGBT Rights in Europe’ (2014) 68(2) International Organization 1. 62 Article 1 of the Convention reads as follows: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.’ 63  On the gradual jurisprudential construction of an expansive understanding of art 13, see Helfer (n 53) 144–46. 64  ibid 141–49. 65 ibid.

86  Dimitrios Tsarapatsanis characteristics and abilities, are better placed than the Court itself to pass judgment on a number of contentious issues. As part of a larger political project, the Court relies on others not in order to abdicate its responsibility, but in order to discharge its institutional duty, which is to enforce the Convention as best it can.

B. Subsidiarity Subsidiarity considerations warrant similar conclusions. The principle of subsidiarity is firmly grounded in the context of the ECHR system.66 It was frequently mentioned and used by the Court even before Protocol 15 was made open for signature.67 The principle appears to flow naturally from some of the most basic structural institutional features of the Convention system, to wit, the obligation of States Parties to primarily secure themselves the rights enshrined in the ECHR68 and the procedural rule of exhaustion of domestic remedies, combined with the obligation to invoke alleged violations of Convention rights before national authorities on pain of inadmissibility.69 Moreover, and apart from textual homes, there are solid, even if disputed, reasons to think that subsidiarity is a normatively appealing principle in its own right.70 Subsidiarity applies in circumstances involving the distribution of powers between decision-making bodies located at different levels. Typically, these include a higher-level central unit and lower-level sub-units.71 According to a standard definition provided by Andreas Føllesdal, subsidiarity stipulates that when two bodies are concurrently responsible for exercising the same power: [P]owers or tasks should rest with the lower-level sub-units of that order unless allocating them to a higher-level central unit would ensure higher comparative efficiency or effectiveness in achieving them.72

Correspondingly, under standard accounts, subsidiarity puts forward a criterion of efficiency when it comes to deciding whether to attribute decision-making power to a central unit in the realisation of a commonly shared value or objective. The allocation of decision-making power to the central unit is justified if that allocation is the best way of realising the common value or objective. 66  See generally P Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ (2003) 97 American Journal of International Law 38, 40. 67  In this respect, see the seminal Belgian Linguistic Case (23 July 1968, Series A No 6, p 34, at para 10) and Handyside v UK, 7 December 1976 (App No 5493/72) [1976] ECHR 5; and, more recently, Selmouni v France (Grand Chamber), 28 July 1999 (App No 28503/94) at para 74. 68  See art 1 ECHR. 69  See ibid, art 35(1). The Court insists that, in order to be admissible, the complaint to the effect that a Convention right has been breached has to be raised ‘at least in substance’. See Castells v Spain, 23 April 1992 (App No 11798/85) at para 32. 70  Carozza (n 67) 40–49; see also A von Staden, ‘The Democratic Legitimacy of Judicial Review beyond the State: Normative Subsidiarity and Judicial Standards of Review’ (2012) 10(4) International Journal of Constitutional Law 1023, 1033–38. 71  See A Føllesdal, ‘Survey Article: Subsidiarity’ (1998) 6(2) Journal of Political Philosophy 190, 193–97. 72  ibid 190.

The MoA as an Underenforcement Doctrine 87 Under standard accounts of subsidiarity, the link with MoA as an underenforcement doctrine appears direct: underenforcement of the Convention is justified whenever national authorities, because of their superior institutional abilities, are better placed to pass judgment on the interpretation or application of the Convention than the Court itself. Conversely, the principle of subsidiarity is flouted whenever the Court tries by its own resource-bounded cognitive powers to decide on alleged violations of the ECHR, if these could be more reliably tracked by deferring to the judgment of national institutions. In such circumstances, underenforcement of the ECHR on institutional grounds can be justified. At the heart of the subsidiarity argument in favour of underenforcement uses of the MoA thus lies a judgment about the comparative institutional abilities of resource-bounded candidate Convention enforcers.

C. Legitimacy The legitimacy of the ECtHR is the third source of normative reasons that can justify the underenforcement of the Convention in an important number of cases. Legitimacy should here be understood in a normative, and indeed moralised, rather than descriptive or sociological way: it purports to articulate the conditions under which various agents involved in a shared practice ought to pay heed to the inputs of their partners given the point of the shared practice, which, in our case, is to do with human rights protection. Legitimacy concerns pertaining to the international protection of human rights, inasmuch as they are to do with the conditions and constraints under which power should be exercised on individuals, point to a wide variety of moral resources. Some of these relate to the normative doctrines of separation of powers73 properly transposed to the workings of international human rights regimes:74 international judicial institutions thus ‘promote trustworthiness’75 in domestic institutions, since they align the workings of these institutions with effective international oversight, providing an additional checks-and-balances mechanism. This is, in a nutshell, one of the main rationales that can justify regional human rights protection of the kind offered by the ECHR system. This mechanism, however, is also constrained by legitimacy considerations that are to do with the Court’s relationship with States Parties. Trustworthiness is not a one-way street, nor does it involve only two players, to wit, the Court and individuals. Rather, it involves complex normative relationships between three kinds of agents: the Court, which exercises interpretive power on States Parties by making the latter abide with its decisions, States Parties to the Convention and individuals

73  See generally D Kyritsis, Shared Authority: Courts and Legislatures in Legal Theory (Oxford, Hart Publishing, 2015). 74  See A Føllesdal, ‘The Legitimacy of International Human Rights Review: The Case of the European Court of Human Rights’ (2009) 40 Journal of Social Philosophy 595. 75  ibid 598.

88  Dimitrios Tsarapatsanis on which these States Parties exercise coercion. Under these conditions, there are at least two kinds of normative considerations that can justify a suboptimal implementation of the Convention by the ECtHR through the MoA. First, traditional concerns relating to democratic legitimacy:76 courts, international and domestic alike, sometimes have to balance substantive reasons, akin to the protection of rights, against procedural reasons, pertaining to the democratic credentials of a given political decision. In so doing, they may well choose to sustain a political decision that appears wrong according to their own understanding, because it is a decision arrived at through a suitably democratic procedure. Second, insofar as human rights issues can be cognitively demanding, as they typically are in hard cases, they may well become the object of reasonable disagreement. Where there is reasonable disagreement about the content of Convention rights, the question of legitimacy becomes pressing: under which conditions should the Court exercise its interpretive power over States Parties? Here again, it appears acceptable, at least in some cases, to use the MoA in order to drive a wedge between an optimal moral understanding of the content of Convention rights in the abstract and the right way to decide outcomes, ie, to exercise power on states. The aim of this chapter was modest: to lend some initial plausibility to an underenforcement reading of the MoA. After an attempt to clarify the concept of underenforcement, I contended that underenforcement uses of the MoA could be explained, among other things, by appealing to considerations relating to the resource-bounded interpretive activity of the Court. It is a somewhat peculiar feature of academic legal scholarship that adjudication is usually represented not as the activity of real-life judges marked by specific constraints, but as that of idealised decision-makers in a frictionless world. This chapter claims that this tendency should be firmly resisted, since it tends to obscure underenforcement judicial doctrines, such as the MoA. Absent a specification of institutional considerations, the MoA appears to be either a relativist doctrine or else an outright abdication of judicial responsibility. Both of these possibilities are justifiably unattractive to friends of Convention rights. However, the suggestion of this chapter is that they are hardly necessary corollaries of the MoA. In fact, once we unpack the MoA in terms of underenforcement, it becomes possible to explain and justify it by appealing to specifically institutional considerations, without presupposing any kind of relativism. This chapter suggests that normative institutional reasons pertaining to subsidiarity, shared responsibility and legitimacy in the enforcement of the Convention could justify, under certain circumstances, underenforcement of the ECHR through the MoA. However, much more needs to be said on this front. I submit, then, that in order to come to a more correct view of the MoA, it is high time we started actively exploring the complex normative and explanatory issues posed by institutional considerations and the resource-boundedness of Convention enforcers. 76  See generally R Bellamy, ‘The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights’ (2015) 25 European Journal of International Law 1019.

5 Anything to Appreciate? A Sociological View of the Margin of Rights and the Persuasive Force of Their Doctrines JIŘÍ PŘIBÁŇ

I.  INTRODUCTORY REMARKS

D

OCTRINES ARE TOOLS used by judges to persuade ‘hearts and minds’ of expert communities and the general public that even the politically and morally most controversial judgments are principled, logically consistent and coherent, and therefore can claim general validity through the medium of legality and its sanctions. They stabilise and strengthen the persuasive force of legal reasoning, which is the ultimate source of authority of courts in any polity. Creating a doctrine is the most effective way of securing power and legitimacy for judicial bodies. An analysis of any judicial doctrine thus necessitates focusing on its general semantics and specific strategies of persuasion. In this chapter, I therefore analyse the margin of appreciation doctrine as a ­strategy of strengthening the legitimacy of rights as the common normative ground of the Council of Europe and its signatory states. Though commonly accepted by judges of the European Court of Human Rights (hereinafter ECtHR), the doctrine is impossible to summarise in one simple rule applicable in specific legal contexts. Its application is difficult to predict in decision-making. However, instead of criticising the doctrine for compromising the European Convention of Human Rights’ (hereinafter ECHR) uniformity, I argue that the doctrine’s ability to make the rights’ meaning flexible and variable actually contributes to the preservation of the ECHR’s general value and normative force. Furthermore, the margin of appreciation is criticised for not being a doctrine due to its lack of conceptual specification and theoretical incoherence. It is merely considered an exercise of discretionary power by its critics. Against this view, I argue that the margin of appreciation is a doctrine not despite of but because of its exercise of discretionary power. It keeps the minimum unity in the argumentatively and institutionally pluralistic environment of the Council of Europe and demonstrates the persuasive force of human rights argumentation in it. As I demonstrate later in

90  Jiří Přibáň the text, the doctrine draws on the general semiological practice of negotiations of meaning within the ECHR’s interpretive community and thus guarantees the stable projection of human rights norms in its relatively volatile normative environment. Human rights may be declared universal, yet their application is always particular and asymmetrically distributed among their subjects, and the ECtHR’s margin of appreciation doctrine is one of many examples of this paradox, which is typical of contemporary political constitutionalism within and beyond the nation state. The universality of rights is impossible to enforce as the ultimate substantive principle of commutative justice. Because there are many different rights and different regimes for their enforcement, I conclude by arguing that the semantics of rights can only contribute to this differentiated communication and just distribution of rights in society.

II.  JURISPRUDENTIAL TRIVIALITY OF THE MARGIN OF APPRECIATION DOCTRINE: GENERAL REMARKS

Doctrines emerge at the national and international levels and travel across ­different legal systems and institutions.1 The margin of appreciation doctrine informs international public law as well as different branches of national legal systems, such as constitutional and administrative law. In the most general sense, it considers legitimate variations in the application of the same legal rules by different bodies and specifies the difference between these variations and illegitimate violations of the rule applications. It uses various principles and techniques of application, such as the principle of proportionality, to assess whether different authorities have crossed the margin or not.2 While resigning to the uniform legal standards, the doctrine guarantees the minimum common normative and interpretive foundations in the politically, legally and socially pluralistic conditions. Questions of when, why and how this margin is granted and justified are not an exclusive matter of legal deontology, but a balancing exercise of policy adjustments to the minimum conditions of functionality in the politically, socially and culturally pluralistic environment without granting blanket exceptions. In the sphere of international public and human rights law, the doctrine ­signifies the relationship between international and national bodies, and contributes to the minimum unity of the system of international laws while recognising the crucial role and differences among the national bodies applying them.3 It may be impossible to summarise in terms of simple rules and principles, yet its justification is 1  G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26(4) Oxford Journal of Legal ­Studies 705. 2  Y Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp, Intersentia, 2001). 3  A Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford, Oxford University Press, 2012).

Anything to Appreciate? 91 quite clear and draws on the widely shared belief that national bodies are better positioned in assessing and handling local matters than their international partners. They are assumed to have better knowledge of political controversies and the public interest, and therefore can better legally conceptualise and legitimise issues and concerns raised by international authorities. If the application of international law is not clear and simple, its application by national authorities supports its legitimacy, despite the fact that the size of the margin of appreciation will be different in different countries and circumstances. The margin of appreciation doctrine is typical of the asymmetrical relationship between the bodies with authority to define the ‘margin’ and the bodies ‘appreciated’ to act within it. Somebody has to have the power to approve the margin and acknowledge the autonomy of those acting, reasoning and making decisions within it. In any legal context, the margin of appreciation doctrine therefore invites the most encompassing and wide-ranging practical and theoretical considerations of principles and policies, conformity and compromise, uniformity and diversity or discretion. The doctrine necessarily stretches from deference to interference and some critics point out that it falls short of presenting human rights issues as a matter of principle. Advocates of international legal and human rights monism consider this pluralistic approach of the margin of appreciation doctrine jurisprudentially confusing, politically destabilising and culturally undesired because the uniform application of human rights should not be compromised by the recognition of differences of legal and political cultures and traditions.4 It is therefore criticised for not being a doctrine because of the lack of theoretical coherence and conceptual clarity.5 According to these critical voices, the doctrine’s overtly political function of compromising the uniform application of norms in favour of a pluralistic pattern amounts to the impossibility of any meaningful theoretical generalisation. These criticisms often draw on a more general speculative vision of human rights as the universalistic foundation of the emerging cosmopolitan culture and totally inclusive politics of global governance and constitutionalism. Nevertheless, in this chapter, I argue that the margin of appreciation doctrine operates as an interpretive tool for securing the necessary minimum legitimation for the ECtHR stretched between general principles and particular politics. Rather than cosmopolitan normative claims and ideals, the doctrine promotes legal and political balances between universalist aspirations and cultural limitations. The doctrine may appear to be a useful tool of judicial policy, yet it remains to­ be established if it can be considered the Aristotelian ‘golden mean’ doctrine as the desirable middle ground between the extremes of excess and deficiency of human right universalism. 4  P Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 Human Rights Law Journal 1. 5  MR Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ (1999) 48(3) International and Comparative Law Quarterly 638.

92  Jiří Přibáň III.  THE COUNCIL OF EUROPE BETWEEN THE UNIVERSALITY OF RIGHTS AND THE PARTICULARITY OF CULTURES

Within the context of the Council of Europe, the margin of appreciation doctrine engages national courts and their jurisdiction and jurisprudence in the protection of rights listed in the ECHR. Thousands of pages have been written on the margin of appreciation doctrine established by the ECtHR. Driven by the parallel need to keep the minimum level of unity in specific human rights protection and recognise differences in legal and political cultures and moral traditions, as well as their impact on the relationship between the Council of Europe and the ECHR’s signatory states, the doctrine instructs the ECtHR’s judges to take these differences into account in their decision-making.6 The principle of priority of the ECHR’s legal norms is challenged by the principle of democratic legitimacy, which maintains that democratically elected and accountable bodies should be primary sites of legally defined public policies and that their decisions should take precedence over both national and international judicial bodies.7 The dilemma whether the ECtHR should be the final authority defining the ECHR’s rights without acknowledging that states in general and their democratically elected legislative bodies in particular have a legitimate role to play in this process is thus part of a much broader problem of constitutionalism beyond statehood and its multiple normative sources. The margin of appreciation doctrine is informed by a broader philosophical perspective of the difference between the universality of rights and the particularity of cultures.8 While the culture argument does not appear in the ECtHR’s decision-making, it is implicitly present in consideration of political, social, economic and even legal differences among the ECHR’s signatory states. The recognition of historical, political, jurisprudential and general cultural diversity by the ECtHR is given by the general need to adjust the ECtHR’s jurisprudence of rights to the particular culture and politics of the ECHR’s signatory states.9 Critical questions whether the margin of appreciation arguments employed by the ECtHR constitute a coherent doctrine or merely a discretionary power call for a general analysis of the semantics of human rights and its impact on structures and institutions of the political and legal systems. Against the critical view of the doctrine as just another exercise of discretionary power, I argue that legal doctrines are structures enhancing operations of specific legal arguments and enjoying the force of persuasion among legal professions and the general public. The margin of appreciation doctrine is then a doctrine not despite of, but exactly because of its ability to exercise discretionary power and keep the minimum unity 6  For one of the most comprehensive overviews, see G Letsas, A Theory of Interpretation of the ­European Convention of Human Rights (Oxford, Oxford University Press, 2007) 7  Legg (n 3) 70. 8  E Brems, Human Rights: Universality and Diversity (The Hague, Kluwer, 2001) 295–307. 9  HC Yourow, ‘The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence’ (1988) 3 Connecticut Journal of International Law 111.

Anything to Appreciate? 93 in the ­argumentatively and institutionally pluralistic environment. However, this argument requires rethinking the general concept of legal doctrine and the historical evolution and varieties of the meaning of the concept of human rights.

IV.  THE SEMANTICS OF RIGHTS IN POLITICS, LAW AND PUBLIC MORALITY: FROM NORMATIVE PHILOSOPHIES TO THE SOCIAL SYSTEMS THEORY OF RIGHTS

Do human rights enjoy their persuasive force because they represent ultimate rules and assessment criteria of legal validity at the national and international levels? Do various conventions, bills and charters of rights represent modern political canons as codified sets of rules enjoying, due to the universal nature of humanity, transcendental status in immanent democratic politics? Are human rights conventions and catalogues to be treated as testaments of a new secular religion that are impossible to criticise without being labelled the enemy of humanity? Are rights regulative ideals or specific outcomes of the political and legal construction of social reality? Are they necessary normative preconditions of what philosophers refer to as ‘open society’,10 ‘the public sphere’,11 ‘civil society’,12 ‘the procedural republic’13 or ‘freedom’s law’?14 And how can these deeply normative convictions operate as liberal principles of neutrality allegedly guarding the virtues of justice, fairness and tolerance in otherwise morally pluralistic and often fundamentally divided modern societies? These are just some questions illustrating the rich semantics of rights and their capacity to be part of the political, legal and moral communication of modern society. At first glance, the universality of human rights may seem unconditionally guaranteed by their ‘humanity’, which, in the modern revolutionary spirit, includes everyone and excludes no one except ‘enemies of humanity’.15 Modern history offers many examples of abuse of the concept of humanity and humanism, from totalitarian political movements to the humanitarian military interventions, yet every breach of human rights seems to only strengthen their universal status and mobilise all kinds of fights and struggles for all kinds of human rights.16

10  K Popper, The Open Society and its Enemies. Vols 1 and 2 (London, Routledge, 2002; originally published 1945). 11  J Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge, MA, MIT Press, 1989). 12  A Arato and J Cohen, Civil Society and Political Theory (Cambridge, MA, MIT Press, 1994). 13 MJ Sandel, ‘The Procedural Republic and the Unencumbered Self ’ (1984) 12(1) Political Theory 81. 14 R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA, Harvard University Press, 1996). 15  For a critique, see C Schmitt, The Concept of the Political (Chicago, University of Chicago Press, 1996) 54. 16 S Moyn, The Last Utopia: Human Rights in History (Cambridge, MA, Harvard University Press, 2010).

94  Jiří Přibáň Despite many historical examples of political wrongs and atrocities committed by powerful forces at the national and international levels, rights still continue to be considered ‘self-evident truths’ which are ‘inalienable’ because their source is neither sovereign government nor the general will behind it. They are not determined by popular acceptance and precede democratic decision-making. Being considered pre-political normative conditions of politics, they are often described as natural or moral even without referring to their sacred or transcendental origin. The transcendental sources of rights are often sharply criticised by legal and political positivists. According to them, human rights are specific outcomes of political struggles and contestations informed by collective experience of polity without necessary recourse to the transcendental authority. However, legal positivists often paradoxically expand and elaborate on the normative force of human rights by claiming that, unlike the multiplicity of divine or moral voices, the language of rights eventually can speak in a single voice informed by political and social experience of rights and wrongs or injustices.17 Despite these convoluted philosophical and jurisprudential arguments, rights can hardly be identified with either the naïve moralistic concept of humanitarianism or the principle of utility and technocratic expertise associated with legality, legal knowledge, arguments and interpretation. Instead, they are mutually recognised and shared by members of political community, and, as such, evolve as part of more general societal evolution. In the liberal universe, rights are notoriously described as political trumps ­beating the common goals of policies by principled argumentation.18 Ronald Dworkin and other philosophers and theorists of the liberal democratic rule of law treat rights as the political protection of individuals against losses or injuries resulting from governmental policies and their discriminatory effects. They are ‘a matter of principle’ and the first right in democratic polity is therefore the right to equal treatment before the law reconciling and synthesising the principles of individual liberty and political equality.19 While Dworkin strongly criticises consequentialist arguments and utilitarian positivistic theories of rights, he accepts that the rights-based legal and political systems are eventually justified as ‘the best political programme’, even without God’s or Nature’s legitimacy. Despite the principally positivist jurisprudential approach to the concept of rights, Dworkin’s fundamental and axiomatic right to equality is nevertheless inspired by Rawls’ theory of justice as fairness and, as such, represents a persuasive argument treating human rights as universal principles of a just society legitimising political and legal institutions, and decisions within and beyond the organisational constraints of the constitutional democratic state. 17  A Dershowitz, Rights from Wrongs: A Secular Theory of the Origins of Rights (New York, Basic Books, 2014) 8–9. 18  R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1977) xi. 19  R Dworkin, A Matter of Principle (Oxford, Clarendon Press, 1985) 23.

Anything to Appreciate? 95 The rights questions are questions of morally universal and politically neutral­ (liberal) principles, and judges applying correct and principled arguments ­necessarily arrive at ‘the right answer’. They ‘discover’ rights in the process of legal interpretation and doctrinal arguments. This particular skill places them in the most powerful moral and political position within a polity and turns them into what critics of the liberal democratic rule of law principles call a ‘transcendental ­apparatus’.20 Judges are masters in making the principle/policy distinction and therefore operate at the very top of legal normative hierarchy and political ­legitimacy described, for instance, by Habermas as ‘universal pragmatics’.21 These philosophies and theories of rights show that the normative capacity of rights to externally affect both legal validity and political legitimacy is strong in the context of nation states and international organisations. What philosophers describe as universal pragmatics in the concept of human rights turns out to be an important tool of higher abstraction and increasing flexibility of power operating in these organisations. Rights codified by national constitutions and international covenants enhance both the legitimate functional organisation and efficiency of political power within and beyond the nation state. Their incorporation into formal and written legal documents, such as political constitutions evolving in the modern nation states over the last two centuries, is actually part of more general societal evolution of the prescriptive concept of constitutionalism as the social organisation of structural coupling and irritations between three different social systems—politics, law and public morality. The evolutionary and pragmatic character of human rights means that they cannot be approached as static normative pillars and untouchable principles of society.22 Legal interpretations and doctrines of rights are dynamic tools enabling their users to achieve specific political and societal goals. However, they can move in different directions and it is not guaranteed that the post-1945 ‘rights revolution’23 and its current expansion and adaptation at both the national and international levels will continue without the possibility of future contractions and reversals. They are contested as tools of power operating in the political system, and their legal meaning is always open-ended and depends on the prevailing modes of legal interpretation and doctrinal arguments. This systemic and societal dynamism of human rights within both the systems of positive law and politics means that they keep the extraordinary force of persuasion by legally coding social conflicts into the dichotomy of rights and wrongs, respectively injustice and discrimination. This persuasive force is not restricted by

20 

M Hardt and A Negri, Empire (Cambridge, MA, Harvard University Press, 2000) 78. J Habermas, Communication and the Evolution of Society (Boston, MA, Beacon Press, 1979) 1. 22  L Hunt, Inventing Human Rights: A History (New York, Norton & Co, 2007). 23  CR Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, University of Chicago Press, 1998). 21 

96  Jiří Přibáň formal conditions of legal validity and techniques of political decision-making. Rights-based normative claims always refer to the wider public acceptance and legitimation beyond legality while preserving their legal coding. Moving from philosophical and normative conceptualisations of rights to their social systemic and institutional analysis,24 it is possible to state that constitutional documents organise modern politics and law, yet also provide for legitimate public expectations of how political power and its legal codification are formed, and which societal forces are either expanded or limited by these legal and political codifications and structural coupling between the legal and political systems. Obvious cultural and historical differences in the evolution of modern democratic constitutionalism and human rights are balanced by their general capacity to ­differentiate between politics, law and public morality, and contribute to the ­general expansion of power by its constitutional limitation. The philosophical dispute between normative universalism and cultural relativism may be reformulated as the sociological difference between the multiplicity of social structures and the unity of their semantics. In the pluralistic reality of international law and politics, the universalistic language of human rights thus guarantees both the stability and flexibility of its institutions and legal operations. Similarly, catalogues of rights incorporated into political constitutions facilitate the normative unity of the legal system while coevally guaranteeing and promoting political and societal plurality. From this sociological perspective, human rights and their specific legal doctrines may be described as specific tools enhancing the societal production and systemic differentiation of normative structures and legitimate expectations. The general semantics of human rights reformulates the classic jurisprudential and political problem of legitimacy by legality as the problem of legitimacy of legality. Legality is not enough to legitimise political power because the history of the twentieth century is full of political extremities and examples of the worst crimes against humanity formulated and enforced as laws. Against the Stalinist political trials masked as the due process of law or the Nazi Holocaust policies organised through legal ordinances, the formula of legitimacy by legality appears to be dangerously deficient. In the Aristotelian ‘golden mean’ sense, it is an example of the extremity of deficiency. Legality therefore calls for specific legitimation and the persuasive power of the concept of human rights responds to exactly this deficiency of legalism. However, the dynamic and evolutionary character of human rights means that they cannot simply be described as static normative foundations of modern democratic politics. Instead, human rights and their doctrines need to be sociologically analysed as specific structures and institutions channelling power operations of modern society.

24  See, for instance, G Verschraegen, ‘Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory’ (2002) 29(2) Journal of Law and Society 258, 260.

Anything to Appreciate? 97 V.  HUMAN RIGHTS, THEIR EVOLUTION AND PARADOXES: A SOCIOLOGICAL PERSPECTIVE

The concept of human rights became part of increasingly general and uniform patterns of legitimacy in modern politics, and its importance significantly grew at both the national and international levels in the second half of the twentieth century. Together with the institutional framework of the democratic state, it became the most significant normative structure of post-1945 constitutionalism and international law.25 The concept of universal human rights historically drew on the relationship between individuals and political society organised into the modern state.26 Human rights evolved as a social institution protecting individuals and different social groups against totalising tendencies of democratic politics. Their conceptualisation as natural rights significantly affected the pragmatics of written legal documents and their argumentative strategies vis-à-vis the societal expansion of modern democratic politics. This specific normative self-constitution and social self-description of modern political society as the polity of legally protected and enforceable rights requires special attention because it emerges at all levels of contemporary political constitutionalisation—subnational, national, international, supranational and transnational. Human rights are therefore extremely important for the evolution of law beyond the constraints of the nation state. They have become the force of generalisation in the otherwise profoundly fragmented and particularised system of global positive law.27 At the global level, all actors, from states and international organisations to corporations and individuals, are expected to comply with human rights.28 Due to their universally normative appeal, states and other social organisations are expected to be responsible for the protection of human rights and to make them an intrinsic part of their legislation, administration and judicial decision-making. However, the existing fragmentation and divergence of the legal system of global society and international or supranational organisations raise doubts regarding the functionality of a global legal order29 and the limitations of supranational and international law-making and its application and enforcement. As stated above, rights institutionally balance the totalising tendencies of democratic decision-making, which tends to politicise ever more areas of f­unctionally 25  K Parlett, The Individual in the International Legal System: Continuity and Change in International Law (Cambridge, Cambridge University Press, 2011) 296. 26  NA Englehart, ‘State Capacity, State Failure, and Human Rights’ (2009) 46(2) Journal of Peace Research 163. 27  EP Mendes, Global Governance, Human Rights and International Law: Combating the Tragic Flaw (Abingdon, Routledge, 2014). 28  J Přibáň, Sovereigny in Post-sovereign Society: A Systems Theory of European Constitutionalism (Farnham, Ashgate, 2015) 123. 29  N Luhmann, Law as Social System (Oxford, Oxford University Press, 2004) 488.

98  Jiří Přibáň differentiated society. At the same time, they balance similar tendencies of economic rationality by limiting the impact of the market economy on politics in particular and society in general. Furthermore, they substantially contribute to the formation of a collective identity of modern polities as civic nations with distinct public morality and normative aspirations. These aspirations are usually described in terms of political culture informing other institutions within and beyond the modern constitutional democratic state. Rights thus function both as filters of political power and as possibilities for legal and political interventions to the social environment. However, these specific operations of rights within modern functionally differentiated society are related to the paradox of popular sovereignty preceding all normative foundations and institutional limitations of politics, yet are exercised only within exactly those limitations specified by constitutional laws and rights codified by them. It is a general paradox of morally defined rights conditioning the normative framework of the constitutional system which, nevertheless, need to be exclusively formulated and enforced by the sovereign power of the constitution. The sovereign popular will exercised through the system of constitutional rights of individuals and different social groups refers to the general paradox of the authority and the foundation of law,30 which is one of the foundational paradoxes of modern constitutional politics and the state,31 making the ultimate source of law exclusively bounded by the law. The difference between constituent and constituted power is then reformulated as the unity of the difference between the sovereign people and the multiplicity of citizens self-constituting their ­polity. The constituent elements of liberal democracy thus involve operations both organising the general will of the people and protecting the individual will of each citizen. Rousseau’s dichotomy of the general and individual will is institutionalised through the constitutional system of power separation and basic rights protecting citizens’ autonomy and keeping public bodies from interference in the private sphere. This paradox of the sources of law is extremely popular with speculative ­philosophy and legal theory searching for legitimacy and the ‘right’ normative foundations of political constitutionalism. However, it can also be analysed sociologically as a source of internal operability of the legal system, especially in the process of judicial and constitutional review and interpretive authority affecting the meaning of fundamental rights. Paradoxes as sets of ‘individually plausible but collectively inconsistent’32 propositions are an intrinsic part of the sociological analysis of legality as social communication deparadoxifying logical inconsistencies and contradictions produced by the legal system. These contradictions and inconsistencies call for a revision of 30  O Perez, ‘Law in the Air: A Prologue to the World of Legal Paradoxes’ in O Perez and G Teubner (eds), Paradoxes and Inconsistencies in Law (Oxford, Hart Publishing, 2006) 17. 31  ibid 20. 32  RM Sainsbury, Paradoxes (Cambridge, Cambridge University Press, 1995) 1.

Anything to Appreciate? 99 the legal principles defined by their status of unchangeability and unrevisability. Paradoxes therefore arise whenever specific statements about the legal system ‘give rise to contradiction, and when this self-contradiction is supported by apparently good reasons’.33 As Gunther Teubner points out in this context, ‘not only do worlds of meaning necessarily bring out paradoxes, but paradoxes bring out new worlds of ­meaning’.34 Rights are then to be sociologically comprehended as social institution commonly channelling structural irritations and deparadoxifying paradoxes arising between the systems of positive law and politics. They handle the contingency of legal and political decisions so that they minimise the risk of paralysis of legal and political operations. They enhance both the intra-systemic communication within the legal system by introducing those ‘new worlds of meaning’ into legality and the inter-systemic contacts between the systems of positive law and politics. This communication and contacts include different organisations and their institutions, such as the Council of Europe and the ECtHR and top judicial bodies of the signatory states.

VI.  HUMAN RIGHTS AS POWER CONSTELLATIONS

Human rights constitute important referential points of self-description and selflegitimation of political and legal structures. By restricting the extent of democratically generated political decision-making, they actually refine and enhance the productivity of such power and confirm the mutual normative bond between those who govern society and those subject to them and their rule. They define the relationship between the state and its citizens or the system of separation of power between the legislative and judicial bodies. They thus construct and articulate the conditions of legitimacy of any power emerging within the system of politics. Human rights paradoxically expand the legitimacy of political power by legally restricting its effects. Indeed, the concept of human rights has different meanings in specific social systems of positive law, politics and morality. This differentiation, however, creates ever stronger interdependence between legality, political power and their moral validity. The problem of human rights and their legitimacy is therefore not an exclusive matter of moral judgement and involves operations of the systems of positive law and politics. Jürgen Habermas formulates such interdependence between legal and moral validity as follows: The expression ‘legitimacy’ designates the specific kind of prescriptive validity that ­distinguishes law from ‘morality’. Valid moral norms are ‘right’ in the discourse-theoretic sense of just. Valid legal norms indeed harmonize with moral norms, but they are ‘legitimate’ in the sense that they additionally express an authentic self-understanding of the 33 

Perez (n 30) 14. Teubner, ‘Dealing with Paradoxes of Law: Derrida, Luhmann, Wietholter’ in O Perez and G Teubner (eds), Paradoxes and Inconsistencies in Law (Oxford, Hart Publishing, 2006) 47. 34 G

100  Jiří Přibáň legal community, the fair consideration of the values and interests distributed in it, and the purposive-rational choice of strategies and means in the pursuit of policies.35

The concept of human rights and its legitimation force significantly ­contributed to the growing abstraction and generalisation of power in modern society.36 It constituted the modern relationship between individuals and sovereign government and thus facilitated the differentiation of the state as the ultimate organisation of political power under the rule of public law. The concept of constitutional rights historically supported both the abstraction of political power and the unprecedented level of social inclusion necessary for the political organisation of the modern constitutional state. The state organisation became increasingly democratised and the risk of its identification with the totality of society was contained by the increasing role of rights and their specific delimiting distinctions, such as the distinctions between the public and private spheres, negative and positive rights, or individual and collective rights. Though commonly viewed as the most important constitutional limitation of political power, the concept of rights actually constitutes and consolidates specific power constellation in modern society consisting of legally regulated and stabilised procedures of political decision-making and its enforcement. In other words, subjective rights demand legal subjects! The semantics of rights thus delineates the three systems of law, politics and morality from their social environment while making them dependent on each other and increasing their mutual structural irritations, which are described, for instance, as the ‘juridification of politics’, ‘the rights revolutions’, ‘human rights fundamentalism’, the ‘instrumentalisation of law’, ‘constitutional justice’ etc. The concept of rights, especially human rights and its structural incorporation into the modern constitutional state, significantly expands power by turning it into general principles and protecting it from private contestations by public law procedures. As Chris Thornhill comments, rights evolved ‘as inner elements of power’s abstracted autonomy’37 within the sovereign state governed by the rule of law. However, this systemic interdependence between legality and power also becomes increasingly dependent on the articulation of subjective rights as natural and universal doctrines which have their roots in the Enlightenment period and political revolutions of the eighteenth century. The functional differentiation of modern society is therefore directly linked to the moral universalism which, while representing and describing itself as ‘the foundations of society’, actually operates as a specific external reference enhancing monistic claims of the systems of positive law and politics, and articulating their general and abstract claims without direct access to the symbolic codes of power and legality. 35  J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA, MIT Press, 1996) 155–56. 36  See, for instance, C Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge, Cambridge University Press, 2011) 153. 37  ibid 161.

Anything to Appreciate? 101 The semantics of human rights thus preserves external normative access to law commonly described as the problem of legitimation and often formulated in the language of its ‘crisis’, ‘deficiency’ etc. It functions as the legitimation resource of the systems of positive law and politics. It claims to have resolved the ‘problem of legitimacy which law itself is not obliged to solve’.38 However, the concept of human rights cannot indicate recourse to the ethical foundations of positive law because its validity is conditioned by the internal code of legality and does not depend on external criteria of non-legal legitimacy. In this sense, the moral and legal concepts of human rights are independent and this conceptual separation allows even for moral dissent from legal conceptualisations of human rights. The universal appeal of human rights is not spared of its particularisation and fragmentation, as evidenced, for instance, by the necessarily relativistic interpretation of social and economic rights. Welfare asymmetries and particularities of global society make the general validity of social and economic rights impossible beyond the non-operational level of counterfactual moral demands and public campaigns and protests, such as ‘Make Poverty History’, ‘Occupy Wall Street’ and ‘We are the 99%’. The possibility of uniform enforcement of rights therefore depends on the selfrestrictions of their catalogue. The more rights there are to be listed, the less chance there will be of having them generally recognised, accepted and applied beyond nation states. The legal norms of human rights are thus self-constituted and selflimited by the generally recognised right to equality, yet this equality ‘must accept legally accepted inequalities’.39 The expectation of the universal validity of human rights is always compromised by their particular forms of legal enforcement. At the level of legality, rights lose their universal moral appeal and become subject of legal arguments related to the variety of political controversies and other societal conflicts arising, for instance, from economic inequalities, religious differences and educational opportunities. This paradox of relatively unproblematic universal legitimation destabilised by specific legal problems and solutions leading to new conflicts and contestations enhances the function of human rights as guarantors of the open-ended operations and character of modern society. However, this function effectively means that they can never be considered as modern society’s ‘foundations’, ‘spirit’ or ‘civic religion’, ultimately including the whole of humankind and excluding no one from the fraternity of global society. In short, human rights are not the substance of positive law.

VII.  THE FORCE AND LIMITS OF LEGAL DOCTRINE

The first goal of law is to make the fundamental distinction between its rule and brutal force. Hobbes and many others inform us that auctoritas, non veritas facit 38  39 

Luhmann (n 29) 194. ibid 226.

102  Jiří Přibáň legem, yet this authority, without the law, is nothing but the brutal tyrannical force. St Augustine’s most provocative question—‘what are states without justice but robber-bands enlarged?’40—keeps haunting even contemporary political and legal scholars and philosophers, who, like HLA Hart, seek to make the basic distinction between law’s coercive power of impartial general rules and the gunman’s commands. Indeed, law protects us from the free use of violence,41 but justice without the state’s enforcement apparatuses and monopoly of violence is nothing other than a moral fable. However, the relationship between law and force is not just the problem of the effective enforcement of laws guaranteed by political power that nevertheless is normatively constrained by legality. It is not just a problem of the inter-systemic communication between power as a medium of the political system and legality as a medium of the system of positive law. Like the semantics of human rights, it is primarily an intra-systemic problem of the force of legal interpretation within and beyond expert legal knowledge which needs to be treated as an intrinsic part of legal argumentation.42 It becomes a question of the validity of positive law and whether potential deficiencies and contradictions of specific legal reasons can be overcome by general substantive principles of political reason and overarching structures, such as Rawls’ ‘overlapping consensus’ and Habermas’ ‘communicative reason’. The function of legal doctrine is therefore to establish the boundaries of the legal system and determine what falls within legal communication and what is excluded from it as moral, political or any other social prejudice. Doctrinal principles are not the external normative foundations of law, but its internal programmes of ­legality’s self-validation. They organise legal arguments into a coherent and ­internally constructed logical structure of law’s self-limitation and self-reference by making distinctions between different legal principles, their applications in different cases and confirmations or modifications in different legal circumstances. As Niklas Luhmann states: Someone who understands reasoning as a reference to reasons will feel the necessity to find reasons for the reasons as well. Someone who must find reasons for reasons needs tenable principles. Someone who refers to principles ultimately refers to acknowledged principles in the environment of the system. This is especially the case when such principles carry the additional signature of ‘moral’, ‘ethical’, or ‘reasonable’ principles … can principles do away with the requirement of their having to distinguish themselves from each other? And if not: who does the distinguishing, if not the legal system itself?43

Despite the claims of liberal theories of the rule of law and constitutional ­democracy, doctrines, by the explanation through a legal principle, do not define

40 

O Höffe, Political Justice (Cambridge, Polity Press, 1995) 77. HLA Hart, The Concept of Law (Oxford, Oxford University Press, 1961) 167. Luhmann (n 29) 66. 43  ibid 312. 41  42 

Anything to Appreciate? 103 the ultimate grounds of the validity of law, but rather formulate the difference between the legal system and its environment and internal conditions of the law’s validity. Law and legal doctrines thus do not have binding force in the sense of the ultimate legitimation principle of the political will and authority exercised by the state and other political organisations.44 However, because the legal system consists of communication through the medium of legality and its structural deposits, legal doctrines have the force of persuasion within legal argumentation. It is well-established knowledge in sociological theory that structures ­specify operations, yet can only be established and varied by them. Structural ­patterns of continuity and change evolve through the ongoing operations of social ­structures.45 Using the general relationship between social structures and operations, legal doctrines can be described as structural deposits specifying operations of legal argumentation which, in turn, establish and vary specific legal doctrines. Their pragmatic or moral value remains unimportant as long as they are considered to be an intrinsic part of the legal system. The system of positive law is not a crystal glass sculpture of clear principles determining its constitution and shape, but a contingent outcome of historical interpretations and momentary decisions. This temporality means that whatever we know about the law’s presence informs us that its future will be different from the past, and doctrines underlying its present structure can be reviewed and altered at any time through interpretive practices considered persuasive by legal experts. Legal argumentation and doctrines are not merely specific examples of general principles of reason and reasoning. They are the ‘artificial reason’ of legal expertise tested and induced through both experience and competence.46 The unity of law is not guaranteed by the principle of justice or ‘right law’ because legal argumentation and doctrines can refer only to their specific rationality. Legal doctrines therefore cannot guarantee one ‘right answer’ leading to the only ‘right decision’ because equally good reasoning can lead to different decisions, as the margin of appreciation doctrine persuasively demonstrates in the context of the ECHR. Specific legal methods of persuasion do not derive from general principles of reason or discourse and its ethics. The legal system cannot guarantee these principles because it would amount to reintroducing the general criteria of transcendental reason into the specific doctrinal methodology of immanent legal reasoning. Universal justice cannot prevail through the particular rationality of the system of positive law and subject legal validity to political reason. The difference between the persuasive force of expert legal doctrines and ­political reasoning in democratic community is impossible to eliminate by some theory of legal argumentation and adjudication guaranteeing the integrity of the 44 

Luhmann (n 29) 72. Merton, Social Theory and Social Structure. Enlarged Edition (New York, Free Press, 1968) 43–45. 46  Luhmann (n 29) 311. 45  RK

104  Jiří Přibáň legal system by its moral validity and political legitimacy. In the context of human rights, this argument from the perspective of difference means that specific rights and freedoms, including the freedom of expression or the right to life, are never a matter of impartial and neutral principle.

VIII.  ANYTHING BUT DISCRETIONARY POWER?

Politics, whether national or international, consists of the process of a posteriori universalisation of the particular.47 Universalisation guarantees political attention within modern polity even if it provides no doctrinal guidance and criteria for legal decisions. However, this specific structural irritation between legal and political argumentation and communication means that general legal rules are products of particular interpretive practices which can therefore neither claim their universal reasoning status nor avoid discretionary forces they are supposed to repel.48 The history of human rights is one of the most striking examples of the process of the universalisation of particular norms evolving from what Jeremy Bentham described as ‘nonsense upon stilts’49 into the generally accepted normative framework of modern states and supranational or international organisations. The current cosmopolitan and universalistic appeal of rights is historically entrenched in particular political conflicts and the development of modern society. The concept of human rights enjoys extraordinary persuasive force across otherwise different cultures, peoples and their political organisations. Legal rules and principles, including those formulated in the semantics of human rights, are the result of legal interpretation’s force and remain the ­subject of constantly recurring interpretive efforts. The law’s neutrality is a form of political prejudice itself, yet its political force is turning allegedly impartial legal arguments into the most persuasive form of political legitimation. As Stanley Fish claims: [T]o the extent that the law is compelling, it is compelling in relation to the very prejudices and biases it supposedly neutralizes; the reasons for which we do something or refrain from doing something are reasons only by virtue of the preconceptions and predispositions we already have. (Emphasis in original)50

Fish would agree with the autopoietic social systems theory’s view that the law’s principled function of neutralising political and social interests by the impartial 47  E Christodoulidis, ‘Eliding the Particular: A Comment on Neil MacCormick’s “Particulars and Universals”’ in Z Bankowski and J MacLean (eds), The Universal and the Particular in Leal Reasoning (Aldershot, Ashgate, 2006) 98 48  S Fish, Doing What Comes Naturally (Durham, NC, Duke University Press, 1989) 512. 49  J Bentham, Rights, Representation, and Reform: Nonsense upon Stilts and Other Writings on the French Revolution. The Collected Works of Jeremy Bentham, P Schofield, C Pease-Watkin and C Blamires (eds) (Oxford, Clarendon Press, 2002) 317. 50  Fish (n 48) 519.

Anything to Appreciate? 105 code of legality and legal interpretation is impossible to achieve because law and its doctrines can only refer back to the legal system and cannot neutralise power as the code of politics. However, he comes to the completely opposite conclusion regarding the relationship between legal and political principles and arguments by stating that law is impossible to separate from social environment full of ­prejudgements, biases and presuppositions. In the quasi-Nietzschean language, Fish summarises that ‘the force of the law is always and already indistinguishable from the forces it would oppose’.51 ­Nevertheless, he warns against naïve interpretations of Nietzsche’s identification of truth with rhetoric popular among some critical legal and political theorists who, by unmasking the allegedly neutral and impartial liberal rule of law’s political and social force, believe that they can transcend it and theoretically avoid profound contingencies in the legal and political systems. For Fish, this is just another escape into new versions of revolutionary idealism and intellectual formalism pretending to demystify all power as ideology and contrast it to the alternative political and philosophical programme.52 Against these theoretical and political hopes of critical legal and political theory, the ‘anti-foundationalist’ response allegedly is that: [Y]ou may know in general that the structure of your convictions is an historical artefact, but that knowledge does not transport you to a place where those convictions are no longer in force. We remain embedded in history even when we know that it is history we are embedded in.53

Against common critical legal and political studies’ claims that ‘law is politics’ or ‘law is ideology’, Fish formulates a philosophically and theoretically radical antifoundationalist approach contrasting legal principles to ‘adhoccery’54 of politics and ethics of ends. This politics treats matters of legal principles and principled resolutions as always already informed by social and historical contingencies, purposive politics and morality of ends rather than means. Confronting the allegedly impartial liberal principles of autonomy, respect, toleration or equality, he uses extreme examples of religious and political violence, such as the fatwa death sentence issued by the Iranian leader Ayatollah Khomeini against Salman ­Rushdie,55 to show that every principle—in this case the principle of tolerance— runs into its internal limits and paradoxes of tolerating a culture whose core values are intolerant and will resist any appeal for moderation and integration into a larger ­community of shared values. Similarly, the legal protection of free speech is not a legal principle, but a specific interpretive endeavour promoting historically and socially contingent and changing practices while necessarily censoring and prohibiting other practices. It is both constrained and constraining. Each speech has social and political 51 

ibid 520. ibid 494–95. 53  ibid 524. 54  S Fish, The Trouble with Principle (Cambridge, MA, Harvard University Press, 1999) 65. 55  ibid 56, 60–61. 52 

106  Jiří Přibáň c­onsequences and its limitations are not matters of impartial reasoning, but political aims and practical goals, such as the exclusion of political or religious fanatics from ‘a ­civilized debate’.56 However, the decision of who can be part of such a debate as a rational person ready to recognise and accept the force of reasonable arguments is not a matter of principle itself and needs to be decided before the debate itself. According to Fish, the value of the right to free expression is thus a matter of the pre-existing definition and decision as to who is the freedom’s enemy and needs to be excluded from it. According to this view, principles are beliefs shaped through the means of legal interpretation. Legal principles already contain moral substances and political motives, and their neutrality actually presupposes contingent practices and the force of the law’s interpretive community.

IX.  FROM DIFFERENT REASONS TO THE REASONABLE DIFFERENCES IN THE MARGIN OF APPRECIATION OF DOCTRINE

Using Stanley Fish’s radical attack on the concept of impartial and neutral legal principles, one of the initial criticisms of the margin of appreciation doctrine, which accuses it of compromising the principled monistic and neutral character of human rights by the power of judicial discretion giving into the particularities of culture and tradition, may be regarded as full of cultural contaminations, moral substances and political particularities itself. If all principles and ‘right laws’ are manifestations of discretionary forces and substantive prejudgments operating within the system of positive law, the margin of appreciation doctrine is no less principled than other doctrines and theories of fundamental human rights and their adjudication. The politically impartial non-partisan, morally neutral and legally principled character of human rights as the normative foundation of modern national and international polities is questioned by theories and philosophies which consider human rights outcomes of political contestations, social conflicts and historical evolution. However, the ECtHR would never respond to the monist and universalistic criticisms of its margin of appreciation doctrine by admitting its juridically discretionary and politically contingent character. Instead, the ECtHR internalises the simple fact of political differentiation and segmentation of the Council of Europe into individual signatory states as the general structural precondition to engage in specific legal argumentations regarding the limits and benefits of ­normative pluralism within the Council of Europe. Like the EU, the Council of Europe is part of the post-1945 dream of ­European integration as the rule of law-driven enterprise externally legitimised by the ­ideals of democracy and human rights. The Council of Europe’s internal structures

56 

ibid 68.

Anything to Appreciate? 107 and mechanisms of integration remained closer to the traditional international law and politics, yet their supranational and post-national appeal preceded the ­constitution of the post-national EU. Under the ECHR, national governments significantly reformulated their domestic constitutional structures and engaged in supranational-legal integration through the semantics of human rights and the jurisprudence of the ECtHR. Political segmentation of the Council of Europe into nation states guaranteed the principle of democratic accountability and law-making as a founding principle, while making these states organisations of legal enforcement of the ECHR interpreted and applied through the ECtHR’s judgments and doctrinal jurisprudence. Therefore, the structural and textual differences between the legal systems of the ECHR and state constitutions have always informed debates about normative, institutional, interpretive and organisational pluralism and different legal arguments limiting its centrifugal effects. Differences between individual states are as significant as their overall commitment to the ECHR as both a legal text and a political context in supranational Europe. Unlike in the EU, in which Member State governments often perform the opposition function to the supranational EU governance by reformulating national interests as part of European policies, the signatory states as organisational segments of the ECHR constitute political and legal structures committed to the semantics of human rights. Nevertheless, the semantics of European human rights was recently adopted by the EU itself. The systemic differentiation of ­European supranational governance and nation state governments, so typical of the EU’s political system,57 is thus becoming increasingly complex as a result of the ECHR’s incorporation into EU constitutional pluralism, while not transforming its original character of an international law document. Like the EU, the Council of Europe is typical of the functional differentiation of legal and political structures and semantics. Indeed, what makes the margin of appreciation a doctrine is not its logical and argumentative coherence, but the persuasive force which determines any legal normative framework, including the ECHR. The doctrine remains sound and popular precisely because it contributes to the differentiation between the system of law and politics by selecting specific self-limitations of the general process of the juridification of politics for the ECtHR. The doctrine therefore should not be criticised for its discretionary character because all doctrines involve discretionary power. Through the process of self-­ limitation, the ECtHR actually sets up the boundary between the ECHR’s legitimation by expert knowledge and its signatory states’ dependence on legitimation by democratic representation and law-making. The doctrine’s apparent contingency is actually predetermined by profound structural differentiation with the Council of Europe’s internal organisation, nation state segmentation and ­functional differentiation between law and politics evolving through the ECHR’s text and contexts. 57 Přibáň

(n 28) 169.

108  Jiří Přibáň The positive legal system of European human rights conditions state legislation and law enforcement, yet still depends on states, which are expected to comply with these rights on their territory. The general legal norms of European human rights can regulate particular political processes within and beyond statehood, but their practical significance is not given by their self-description as basic principles of the political community. Instead, it is the elasticity and variability of human rights and their adaptability to the real political situation through legislative and adjudicative processes that preserves their practical significance as both an internal part and external legitimation of positive law. The margin of appreciation doctrine therefore functions a as powerful strategy of deparadoxifying human rights as universal normative claims enforced within the constraints of European supranational institutions. Its primary role is to preserve normative expectations related to specific human rights without imperilling their sanctions. It avoids norm conflicts in the field of human rights and the risk of non-compliance with these normative expectations on a massive scale at the Member State level. In short, the margin of appreciation doctrine guarantees the stable projection of human rights norms in the relatively volatile normative environment of the ECHR. The legitimation conflict between the doctrinal knowledge of legal experts and the democratic knowledge of the general public in the ECtHR’s margin of appreciation doctrine echoes Weber’s general differentiation between expert and plebiscitary aspects of modern democratic politics.58 It is a doctrine of ‘reasonable difference’ attempting at minimising the legal risk of normative differences by the most general appeal to ‘reasonableness’. It is also the structural precondition of adjudicative operations in the Council of Europe’s legal and constitutional pluralism. Despite its hierarchy-like-sounding asymmetry, the margin of appreciation doctrine is a relational doctrine copying the very structure of the Council of Europe and the ECHR. As Umberto Eco comments in the context of general ­semiology: ‘It is the text that negotiates the rules.’59 The doctrine therefore needs to be treated as the basis of successive interpretations and negotiations of the meaning of specific rights listed in the ECHR. In other words, it is a specific contractual relationship between the ECtHR and other agencies of legal argumentation operating within the Council of Europe through its internal structures or structures of the signatory states. The ECtHR’s margin of appreciation doctrine thus enhances the minimum functionality of supranational legality incorporated into the ECHR by exposing it to the externality of political orders and the public interests operating at the Member State level.

58  E Kilker, ‘Max Weber and Plebiscitarian Democracy: A Critique of the Mommsen Thesis’ (1989) 2(4) International Journal of Politics, Culture, and Society 429. 59  U Eco, Kant and the Platypus: Essays on Language and Cognition (London, Secker & Warburg, 1999) 275.

Anything to Appreciate? 109 X.  CONCLUDING REMARKS: HUMAN RIGHTS, FUNCTIONAL DIFFERENTIATION AND THE IMPOSSIBILITY OF JUSTICE

‘The virtue of justice is a feature of a state; for justice is the arrangement of the political association, and a sense of justice decides what is just’ writes Aristotle in his Politics.60 According to this view, justice is a first virtue of political life. The same perspective is to be found in the opening part of John Rawls’ Theory of Justice, in which the author famously states that: Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust.61

However, in modern society, the permanent question of just cooperation among members of a polity of free and equal citizens is being replaced by the ever more differentiated semantics of human and civil rights, which, though considered the common normative ground of law and democratic public morality, effectively rules out the ideal of justice as the unity of virtuous political life and laws. After all, Rawls clearly states that ‘the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation’62 and, later, discusses the idea of an ‘overlapping’ and not a uniform consensus.63 The modern political condition is typical of the disappearance of the ethics of virtue and its replacement by the morality of norms, including normative claims formulated through the semantics of rights. Ethical practices and commitments to individual and common life improvement have given way to the codices of norms and their collective enforcement in both legal and moral forms. The commutative virtue of justice has been transformed into distributive charters and catalogues of rights protected and enforced by political institutions at the national, international and supranational levels. States, international organisations and supranational political and legal entities, such as the EU and the Council of Europe, derive their legitimacy from human rights and not the ultimate ideal of a just society. Human rights may be declared universal, yet their application is always p ­ articular and asymmetrically distributed among their subjects. The universality of rights is impossible to enforce as the ultimate principle of commutative justice. Because there are many different rights and different regimes of their ­enforcement, the semantics of rights can only contribute to this differentiated communication and just distribution of rights in society.

60 Aristotle, Politics:

A Treatise on Government (London, Penguin, 1992) 97. J Rawls, A Theory of Justice (Cambridge, MA, Harvard University Press, 1971) 3. 62  ibid 6. 63  J Rawls, ‘The Idea of an Overlapping Consensus’ (1987) 7(1) Oxford Journal of Legal Studies 1. 61 

110  Jiří Přibáň In modern society, neither the state and its law nor any supranational organisation and its legal order can represent the totality of society.64 In this sense, our ­globalised society is ‘polytheistic’, ‘polycontextural’ and ‘autopoietic’, and its concept of justice draws on the processes of social horizontalisation, fragmentation and differentiation.65 Our institutional justice is based on the concept of ‘justice as difference’ and, as Gunther Teubner says, ‘as responsiveness within the unbridgeable difference between social institutions and actual people’.66 In this condition ‘after virtue’,67 rights have become new common goods. Their legal doctrines, such as the ECtHR’s margin of appreciation doctrine, are to guarantee that these goods are justly distributed to all segments of European society, though in a differentiated manner. The semantics of rights thus involves communication between different organisations of the legal system, but also more general communication between formal legality and its ‘informal’ social environment of politics, economics, education, the mass media etc. However, this differentiation within the human rights semantics and its doctrines effectively leads to the ­abandonment of substantive justice and the moral concept of iustitia commutativa because the concept of human rights only recognises and understands practices of distributive justice—iustitia distributiva operating in our complex and functionally differentiated society through the semantics of human rights and its specific doctrines, such as the ECtHR’s margin of appreciation doctrine.

64  J Přibáň, ‘The Time of Constitution-Making: On the Differentiation of the Legal, Political and Moral Systems and Temporality of Constitutional Symbolism’ (2006) 19 Ratio Juris 456. 65 For the concept of polycontexturality, see especially G Günther, ‘Life as Poly-contexturality’ in Beiträge zur Grundlegung einer operationsfähigen Dialektik (Hamburg, Felix Meiner Verlag, 1976–80, 3 vols) 283–306 (this volume published in 1979). For the context of legal autopoiesis, see­ G Teubner, ‘Economics of Gift—Positivity of Justice: The Mutual Paranoia of Jacques Derrida and Niklas Luhmann’ (2001) 18(1) Theory, Culture & Society 29, 38; see also G Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Produces New Divergences’ (1998) 61 Modern Law Review 11. 66 G Teubner, ‘Globalized Society—Fragmented Justice. Human Rights Violations by “Private” Transnational Actors’ in M Escamilla and M Saavedra (eds), Law and Justice in a Global Society (IVR Congress 2005 Working Papers) 551. 67  A MacIntyre, After Virtue (3rd edn, London, Duckworth, 2007) 256.

6 The Prisoner’s Dilemma The Margin of Appreciation as Proportionality or Recognition? MARCO GOLDONI* AND PABLO MARSHALL

I. INTRODUCTION

T

HERE IS MUCH to be learned from the saga triggered by the Strasbourg Court’s decisions on prisoners’ voting rights. The lessons one can draw from this saga are not limited to the application and understanding of the margin of appreciation (hereinafter MoA), even though this remains a core issue. Other theoretical and practical issues are certainly of interest to constitutional and European lawyers. In fact, given that the controversy revolves around a key political right, it is obvious that adjudicating upon the scope and content of that right involves much more than the question of jurisdiction, which is the equivalent of establishing who has the last word on such an issue. This is the case for several reasons: access to the right to vote is an essential component of the definition of the state political process and once this is taken into account, the question of the nature and extend of the right to vote is unavoidably framed as a core political issue; a related question concerns the dialogue between institutions on the scope of the right to vote and its organisation; finally, the legal reasoning adopted in these decisions is rather telling of the mainstream understanding of the relationship between law and politics, and when this understanding is applied to the amphibious figure of the right to vote, a reductive and unsatisfying outcome is likely. Assuming these premises, the chapter reconstructs the Prisoner Disenfranchisement (hereinafter PD) saga with a view to showing that its discussion was framed in a decidedly depoliticised way or, more specifically, that the political value of the right to vote was never really put at stake in the decisions and in the

*  The author would also like to acknowledge the financial support of the Grant Agency of the Czech Academy of Sciences through a project on ‘The Role of the Principle of Proportionality in the Decision-Making Process of Courts’ (grant ID: 15- 3523955S) awarded to the Centre for Law and Public Affairs (CeLAPA), Institute of State and Law of the Academy of Sciences of the Czech Republic, created under subsidies for a long-term conceptual development (RVO: 68378122).

112  Marco Goldoni and Pablo Marshall ensuing debate. Section II introduces two different conceptions of the MoA as a way to set the following analysis, which is devoted, in section III, to the reconstruction of the long trajectory of the cases on PD. In the following section (IV), we examine the framework of the discussion of these cases, usually organised around the question of jurisdiction, which has taken the form of a contrast between legal and political constitutionalism. In other words, instead of focusing on the content of the right at stake, much of the conflict has taken place around the question of which institution ought to decide on the case, that is, whether a political or a judicial one. Then, in section V, we argue that the obsession for the jurisdictional question and the blindness towards the content of the right to vote have hampered a proper analysis of the role of proportionality analysis in all the relevant decisions. In fact, the jurisdictional question has been tested by proportionality reasoning. In this way, any sensitive use of the MoA has been pre-empted in favour of a procedural understanding of proportionality. Section VI concludes by proposing a way of deciding issues on the right to vote that might potentially avoid an application of the MoA centred on jurisdiction and proportionality, with the hope of vindicating the recognition implied in the political quality of the right at stake.

II.  TWO VERSIONS OF THE MARGIN OF APPRECIATION

The analysis of the MoA in the cases concerning PD will be used as a way to highlight a constellation of issues surrounding the right to vote and, more specifically, the nature and scope of this right in the context of contemporary Europe. Our claim is that the legal and political reasoning adopted in these cases have actually depoliticised an issue which lies at the core of the political process. At the same time, the battle between political and legal constitutionalists has reduced the whole issue of the right to vote to a matter of jurisdictional competence: who is entitled to adjudicate in the last instance upon the right to vote? In the case of PD, the institutional dialogue that the MoA is supposed to enhance is actually warped by the adoption of proportionality analysis. The following paragraphs will tackle respectively with these questions and will try to propose a different take on both PD and the MoA as applied in the saga triggered by the Hirst case.1 Before moving to the reconstruction and analysis of the Hirst case (and its cognates in Europe), some remarks on the nature and use of the MoA are necessary in order to understand which kind of legal reasoning is deployed in these and many other cases. Such background will prove essential later on for evaluating the legal approach to criminal disenfranchisement. As is well known, the MoA has been applied in different ways by the Strasbourg Court. Following leading scholars, it is possible to draw a distinction between a strong and a weak sense of the MoA.2 The strong sense is the one already established 1 

Hirst v UK (No 2) [2005] ECHR 681. See S Greer, The European Convention on Human Rights (Cambridge, Cambridge University Press, 2006) 216–20. 2 

The Prisoner’s Dilemma 113 in the Handyside case,3 where the Court concluded that ‘by reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” or “restriction” or “penalty” intended to meet them’.4 As noted, among many, by Alexander Somek, the point of the strong version of the margin is to make the system recognise particularity.5 The application of this version of the MoA is a way to recognise the political nature of the states and it is usually associated with an understanding of the Convention qua international treaty-generating obligations of international law. According to this interpretation, the institutional dialogue triggered by the MoA shall not suffocate the political understanding of rights. However, the Court often employs what can be conventionally defined as a weak version of the MoA.6 Usually, this version reconstructs the doctrine of the MoA as a balancing between the rights of the individual as established by the Convention and the collective goals, interests and identities expressed by national authorities. When it operates under this mode, the Court basically collapses the MoA into a proportionality test, that is, a review of potential interferences to individual rights that can be justified when they are proved to be proportional.7 There is nothing surprising about it, given that balancing (and, in particular, proportionality stricto sensu) is the dominant technique adopted by national constitutional courts to solve the conflict between fundamental rights and public interests:8 ‘the practice of limiting rights by balancing them against conflicting public policy objectives is in fact a near universal feature of the structure of constitutional rights throughout the contemporary world’.9 By now, proportionality reasoning, in its many variations, has gone far beyond the national level.10 The hegemonic use of proportionality on a number of different issues is by itself suspicious. While it is true that proportionality review means different things in different jurisdictions, a common core can be detected, in particular when it comes to the function of proportionality analysis. The concern here is that proportionality analysis is inadequate to adjudicate on certain fundamental rights. In the most straightforward way, such a limitation is recognised by the Convention itself by positing that the protection 3 

Handyside v UK, App No 5493/72 [1976] ECHR 5. ibid [62]. 5  A Somek, The Cosmopolitan Constitution (Oxford, Oxford University Press, 2013) 186. 6  The distinction between strong and weak understandings of the MoA resonates with the one proposed by G Letsas in ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705. 7  G Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford, Oxford University Press, 2008) 87–88. 8  For a general reconstruction, see A Barak, Proportionality (Cambridge, Cambridge University Press, 2012); for an analysis of the multiple constitutional cultures of proportionality, see J Bomhoff, Balancing Constitutional Rights (Cambridge, Cambridge University Press, 2013); cf I Porat and M Cohen-Eliya, Proportionality and Constitutional Culture (Cambridge, Cambridge University Press, 2013). 9  S Gardbaum, ‘Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 789. 10 AS Sweet and J Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 72. 4 

114  Marco Goldoni and Pablo Marshall of certain rights (not to be tortured, for example) is absolute. But this is not the only limit of proportionality analysis: when conducted in a procedural mood, proportionality analysis circumvents any scrutiny of the substance of a right. Yet, proportionality analysis has become so prevalent in today’s Europe that in the string of cases around prisoners’ voting rights, it was adopted not only by the Court, but also by the other institutions involved in those controversies. For this reason, in the remainder of this chapter we will focus only on the weak sense of the MoA and why its use, in cases concerning the right to vote, is extremely controversial. The problem, as we shall try to prove in the following sections, is that proportionality reasoning obscures the political stake of deciding around the boundaries of the right to vote, making the question on the fittest institution for adjudicating these issues redundant and oblivious of the nature of the right in discussion.

III.  THE EUROPEAN SAGA OF PRISONERS’ VOTING RIGHTS

A. Preliminaries During the last decade, PD has begun to be understood as a significant problem in some jurisdictions and, accordingly, laws have begun to be reviewed under democratic and human rights standards. In particular, activists challenging legislation through judicial review based on its violation of fundamental rights have started to gain success, pointing out a formula to challenge PD that could eventually be exported to other jurisdictions to pursue a worldwide progressive agenda. It is in this context that, in 2005, the ECtHR handed down its judgment on Hirst, the first case in which the Court analysed PD in detail,11 ruling that the British legislation violated the ECHR. The provision in question was section 3(I) of the Representation of the People Act 1983 (hereinafter RPA 1983), which allegedly institutes a blanket ban of prisoners’ voting rights. It affirms that a ‘convicted person during the time that he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election’.12 The legal debate around PD in Hirst was focused on whether section 11  Hirst is the first case in which PD is analysed substantively and in detail by the ECtHR. Before Hirst and prior to the enactment of Protocol 11 ECHR, the European Commission of Human Rights had considered the question of PD three times. In X v The Netherlands (1974) 1 DR 87, H v The Netherlands (1983) 33 DR 42 and Holland v Ireland (1998) 93A DR 15, the Commission ruled inadmissible the complaints because they were manifestly ill-founded. In the two later judgments, the Commission considered the total disenfranchisement of sentenced prisoners against A3P1. In both cases (Labita v Italy, App No 26772/95 [2000] 119 ECHR 2000 IV and Vito Sante Santoro v Italy (2004) ECHR 2004 VI), the judgment was based upon the wide MoA awarded to the domestic authorities to decide on this issue. However, those cases were related to the case of those who were being investigated as they were suspected of belonging to criminal organisations and therefore were not cases in which the Court dealt with a general hypothesis of PD (Hirst (n 1) [68]). 12  Section 3 RPA 1983 excludes two classes of inmates: ‘persons dealt with by committal or other summary process for contempt of court’ ((2)(a)) and those imprisoned for non-payment of fines ((2)(c)). Additionally, defendants remanded in custody retain their right to vote.

The Prisoner’s Dilemma 115 3(I) violates human rights, specifically the rights that follow the state obligation to hold free elections under the Article 3 of the First Protocol of the ECHR. From a comparative perspective, the ECtHR was not the first court to apply proportionality to analyse the compatibility of PD and the right to vote; Canada (199313 and 2002)14 and South Africa (199915 and 2004)16 both handed down judgments before Hirst. Nor does the ECtHR boast the clearest jurisprudence about what makes PD incompatible with the right to vote on these grounds. However, Hirst and the decisions that follow have generated a substantial discussion, especially in the UK, regarding the intervention of the Court in sensitive national affairs.17 The main issues addressed by the Court were, first, the MoA enjoyed by Member States to set PD measures that relates the current case with the previous case law on electoral issues. Second, the Court addressed the proportionality of the legal provision. Generally, the Court concluded that the wide MoA of domestic legislatures could not cover the provision of a ‘general, automatic and indiscriminate’ ban, such as section 3(I).

B. The Hirst Case The doctrine of the MoA has been used by the Court ‘to take account of the room for manoeuvre that national authorities may be allowed in fulfilling some of their main obligations under the Convention’.18 The ECtHR’s analysis of MoA in Hirst directly confronted the evaluation made by the British court, which stated that PD should remain completely within the competence of the legislature. The Court, in Hirst, considered the requirements for applying MoA to the case of PD19 and determined that for this to be granted, a decision must be preceded by a substantial discussion before being settled and not merely display passive adherence to a historical tradition. This substantial discussion can be demonstrated not only by legislative debate, but also when the issue has been considered by the judicial instances of the country.20 The Court further specified that this discussion must consider competing interests or assess the proportionality of PD in relation to 13 

Sauvé v Canada (Attorney General) [1993] 2 SCR 438 (53). Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519. There is an agreement in the literature about the doctrinal influence of Sauvé over judgments of other jurisdictions on the topic, based on the sophistication of both the majority and the minority judgments (M Plaxton and H Lardy, ‘Prisoner Disenfranchisement: Four Judicial Approaches’ (2010) 28 Berkeley Journal of International Law 102). 15  August and Another v Electoral Commission and Others [1999] ZACC 3. 16  Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others [2004] ZACC 10. 17  The legal literature on Hirst and the judgments of the ECtHR is extensive. See, eg, S Foster, ‘Reluctantly Restoring Rights: Responding to the Prisoner’s Right to Vote’ (2009) Human Rights Law Review 497–98. 18  Joint Committee on Draft Voting Eligibility (Prisoners) Bill, Report (2013, HL 103, HC 924) 13. 19  Hirst (n 1) [79]. 20  ibid [48]. 14 

116  Marco Goldoni and Pablo Marshall the importance of voting rights. The Court considered that such discussion was absent at the domestic level21 and condemned the UK for having failed to satisfy these requirements.22 The Court also added that even if one grants a wide MoA, this still would not mean that it is all-embracing,23 and called for an irreducible limit to the MoA based on the proportionality test itself.24 It is, at the very least, strange that the Court made an effort to state that the UK did not satisfy some alleged requirements to be granted a MoA and then to consider that section 3 fell outside it as a consequence of its lack of proportionality. This raises the question of whether the satisfaction of these standards should warrant the widening of a state’s MoA, that is, whether or not different the quality attached to deliberative processes should be granted different margins. In Hirst, the standard of the review was the obligation ‘to hold free elections’ of Article 3, Protocol 1 (A3P1): ‘The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.’ The right to vote is not expressly stipulated and has been attributed to the creative activity of the Court under the ‘living instrument’ doctrine.25 Under this premise, the right to vote was recognised by the ECtHR in Mathieu-Mohin and Clerfayt v Belgium,26 which argued that the text of the protocol entails individual rights to vote and to stand as a candidate for national election and not only inter-state obligations. This idea has been ratified in later judgments27 and applied in Hirst.28 The Court structured its motivation around substantive ideas on the right to vote. It affirmed that the vote is a right and ‘not a privilege’, and that in a democratic state, universal suffrage ‘has become the basic principle’, which demands a ‘presumption … in favour of inclusion’.29 On the other hand, however, the Court acknowledged that the right to vote is not absolute and as a consequence of the absence of an explicit limitation clause, it is nonetheless the object of implied limitations. Due to the fact that the ECHR lacks a general clause of limitation of fundamental rights, it corresponds to the contracting parties setting those limitations,

21 

ibid [22]. ibid [78]–[82]. 23  ibid [82]. 24  This was the main disagreement raised by the dissenting opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jebens (ibid [4]). 25 In Tyrer v UK (1978) 2 EHRR 1, the Court established that ‘the convention is a living instrument which … must be interpreted in the light of present-day conditions’ (at [15]). 26  Mathieu-Mohin and Clerfayt v Belgium [1987] ECHR 1. 27 See Matthews v UK (1999) 28 EHRR 361; Labita v Italy (2000) 119 ECHR 2000 IV. 28  Hirst (n 1) [57]. The fact that the A3P1 does not state that there is a subjective right to vote and the allegation of the British government that this case law ignores the intentions of the original drafter have formed the object of a series of arguments in the UK debate about the legitimacy of the creative activity of the Court. 29  Hirst (n 1) [59]. 22 

The Prisoner’s Dilemma 117 which ought to be accorded a wide MoA due to the ‘numerous ways of organizing and running electoral systems’.30 Starting on the basis of a presumption of universal suffrage,31 these limitations must respect some requirements implicit in A3P1, which the Court inaugurated in Mathieu-Mohin32 and which have been confirmed in subsequent judgments. The standard considers three elements: first, ‘it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness’; second, the limitation must pursue a legitimate aim or proper purpose; and, third, the means employed must not be disproportionate.33 The UK government sought to justify section 3 RPA 1983 by appealing to the following abstract purposes: [P]reventing crime and punishing offenders and enhancing civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence. Convicted prisoners had breached the social contract and so could be regarded as (temporarily) forfeiting the right to take part in the government of the country.34

In this decision, the Court did not undertake an examination of the legitimacy of the governmental aims. This was considered a question where wider flexibility was granted in the context of the broader variations within the European democratic models. Despite the reservations expressed in the reasoning, the Court did not find the aims ‘per se incompatible with the right’.35 As we shall argue at length below, the absence of any questioning about the aims of legislation constraining the franchise is extremely problematic: such a delicate issue for the determination of decision-making processes essential for collective self-government ought to have moved the Court to undertake a stricter scrutiny of the aims of reviewed legislation. Having taken for granted, without closer inspection, the requirement of a legitimate purpose, the Court’s ruling regarding section 3 was based on proportionality analysis. However, the Court did not proceed to examine the measure in terms of the traditional formulation of the proportionality test; that is, in terms of its rational connection and minimal impairment and the balancing or proportionality strict sense, or at least not explicitly. It did so with reference to an ad hoc and specific test, currently known as the Hirst test. In the core part of the test, the Court considered that the ‘general, automatic and indiscriminate’36 deprivation of prisoners’ right to vote is incompatible with the Convention, appealing to the necessity of a certain graduation or proportionality 30 

ibid [60]–[61]. ibid [59]. 32  ibid [52]. 33  ibid [62]. 34  ibid [50]. 35  ibid [75]. 36  ibid [82]. 31 

118  Marco Goldoni and Pablo Marshall between the measure of section 3 and the circumstances of the incarceration of prisoners. The Court followed closely the Chamber’s judgment, which affirmed that PD was general because it stripped a ‘large group of people of the vote’; it is automatic because it applies ‘irrespective of length of sentence of the gravity of the offence’; and it is arbitrary because its results depend ‘on the timing of elections’.37 In the central paragraph of its judgment, the Court stated that: [W]hile the Court reiterates that the margin of appreciation is wide, it is not all-embracing … section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances. Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 3 of Protocol No. 1. (Emphasis added)38

The ECtHR concluded that section 3 RPA 1983 violates the right to free elections because it does not take into account the nature of the offence and the duration of the imprisonment in determining the application of PD. In other words, the Court suggested that PD cannot be applied based on the mere fact of imprisonment.39 Affirming this, the Court left open the possibility of a proportionate application of PD, when the legislation considers those factors. However, the Court was cautious in saying that it is for the legislative authorities at the domestic level to determine the ‘means for securing the rights guaranteed by the Article 3 of the Protocol 1’.40 Three other judgments followed Hirst. All three—Frodl v Austria,41 Greens and MT v UK42 and Scoppola v Italy (No 3)43—confirmed the reasoning of Hirst, including the wide understanding of the MoA,44 the legitimacy of the aim of punishment and the enhancement of civic responsibility and respect for the rule of law,45 and proportionality as the test to be applied.46 This is the trajectory of the Court’s case law on PD; it remains open to see (a) how the issue was framed in the public and academic debates and (b) what would be the consequences of a different MoA for the definition of the right to vote. The next section will put into question the frame of the debate in jurisdictional terms 37 

ibid [41]. ibid [82]. ibid [77]. 40  ibid [84]. However, it is not the first time that the ECtHR did not explicitly apply proportionality in terms of a structured test. An overview of the case law of the Court shows that the terms of the proportionality evaluation are tailored to the cases. See A Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford, Oxford University Press, 2012) 178–81. 41  Frodl v Austria [2010] ECHR 508. 42  Greens and MT v UK [2010] ECHR 1826. 43  Scoppola v Italy (No 3) [2012] ECHR 868. 44 See Frodl (n 41) [23]; Greens (n 42) [110]; Scoppola (n 43) [83]. 45 See Frodl (n 41) [30]; Scoppola (n 43) [90]–[92]. 46 See Frodl (n 41) [24]; Scoppola (n 43) [93]–[96]. 38  39 

The Prisoner’s Dilemma 119 while the following one puts forward a criticism of the MoA as proportionality because this understanding has been functional to the pre-emption of a public discussion on the nature and content of the right to vote. The final section will suggest a more political conception of the dialogue between institutions when the right to vote is discussed.

IV.  FRAMING THE ISSUE: LEGAL OR POLITICAL CONSTITUTIONALISM?

The Hirst case, as the leading case on PD, represents an instantiation of pure dialogue/conflict between Strasbourg and a national government (in its legislative and executive instantiations).47 In a constitutional discourse dominated by judicial dialogue, there are many intriguing aspects about the peculiar nature of this conflict, but within the confines of this chapter, it is important to focus on a specific effect created by it. Namely, the framing of the issue, at least in the UK context, has not been conceived around the boundaries and the content of the right itself, but prominently as a matter of which type of institution would be best suited to have the last word on such an issue. Of course, the British doctrine of parliamentary sovereignty has helped pushing the debate towards that direction. Because of these factors, it is no surprise that the issue has been framed by the classic political versus legal constitutionalism juxtaposition. But what also emerges quite clearly from the discussion of PD is that political and legal constitutionalism are just monikers for something much more reductive, that is, a parliamentary versus a judicial version of the constitutional review of rights.48 The Hirst saga exposes these limited views of constitutionalism along two axes: domestic versus supranational legal actors; governments versus courts. Combined together, these two axes form a perfect instantiation of the conflict between a judicial and a parliamentary version of constitutionalism: on one side, the arguments of a state government; on the other side, those put forward by a supranational court. Legal constitutionalism puts forward an easy and predictable argument in support of the jurisdiction of the Court: judges are epistemically better placed to adjudicate on individual rights. Their institutional position and design makes them more suitable for deciding on the content of rights because, contrary to political institutions (which are always seeking re-election), they do not have an interest that is directly involved in the dispute. It does not make a substantial difference whether the court is located within the state or whether it is a supranational court. State governments might still put forward policies with an impact on rights. But for the reason mentioned above, governments ought to leave the last word on rights adjudication to courts.49 47 

Political here means that there is no constitutional court involved. As already remarked, in a different context, by M Tushnet, ‘Political Constitutionalism and Weak Judicial Review’ (2013) 14 German Law Journal 2249. 49  It should be added that rights are sometimes conceived in an apolitical way by legal constitutionalists. A classic reference is R Dworkin, Taking Rights Seriously (Cambridge, MA, Harvard University Press, 1979). Another relevant example is R Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2010). 48 

120  Marco Goldoni and Pablo Marshall The prisoners’ voting rights controversy does not represent a challenging issue for legal constitutionalists. After all, from the perspective of legal constitutionalism, it is difficult to draw a distinction among rights. Their nature is always the same. Hence, the determination of their content ought to proceed according to the same approach. Political constitutionalists bestow special significance upon the electoral process, and one might reasonably expect that they should consider the content of the right to vote as an extremely sensitive issue. The issue of PD seems to be more controversial for political constitutionalism because it concerns a key aspect of the political constitution. Moreover, political constitutionalists obviously are prone to suggest that rights are political all the way down, and if this holds true, then their content ought to be decided politically.50 The extension of the franchise injects an additional component into the representative law-making process: the representativity of a parliament largely depends on its electoral law and on the regulation of the right to vote. For this reason, one would have expected a stronger effort from political constitutionalists to propose substantial defences of the right to vote. However, it is remarkable how little political constitutionalists have engaged with this level of the argument. Most of the interventions have seen in the Hirst saga an instantiation of weak judicial review,51 which is overall compatible with the political constitution. Even when it comes to the legal adjudication, political constitutionalists have not really addressed the legal problem, the principles at stake or the legal reasoning as a suitable method for adjudicating the right to vote, but they have tended to discuss whether legislatures or courts are more suited for its exercise.52 Predictably, the most recurrent argument in the controversy has revolved around the protection of the principle of parliamentary sovereignty. In focusing on arguments concerning the claims of parliamentary sovereignty, MPs and academics emphasised the idea that the parliamentary style of law-making represents an essential justification, but the insistence on the primacy of its opinion failed to confront a serious legitimacy problem with the very objective of the legislation. The problem arises from the claim to represent the people when a specific segment of the population is being deliberately excluded from voting for their representatives, who in turn will vote on laws applicable to that segment. What seems to be a major obstacle for Parliament should be emphasised: that those denied the vote were the same citizens who would continue to be disadvantaged by Parliament’s 50 

R Bellamy, Political Constitutionalism (Cambridge, Cambridge University Press, 2007). On the model of the political constitution with weak judicial review, see S Gardbaum, The New Commonwealth Model of Constitutionalism (Cambridge, Cambridge University Press, 2012); on Hirst as an exercise in weak judicial review, cf R Bellamy, ‘Political Constitutionalism and the Human Rights Act’ (2011) 9 International Journal of Constitutional Law 86; J Hiebert, ‘The Human Rights Act: Ambiguity about Parliamentary Sovereignty’ (2013) 14 German Law Journal 2253. 52  A Tomkins, ‘What is Left of the Political Constitution?’ (2013) 14 German Law Journal 2275. An exception is represented by G Webber, The Negotiable Constitution (Cambridge, Cambridge University Press, 2009). 51 

The Prisoner’s Dilemma 121 decision to refuse to enact remedial legislation. Here lies a major difficulty for political constitutionalism: is it legitimate to deny the vote to prisoners on the basis of the principle of parliamentary sovereignty? The risk of circularity in argumentation is apparent since the principle of parliamentary sovereignty acquires part of its force from the representativity of the legislature (the House of Commons, in this case) and not the opposite. The difficulty inherent in the question of PD has been acknowledged by a prominent political constitutionalist. Jeremy Waldron, in a testimony before the Joint Committee on Human Rights (JCHR), was asked his opinion on whether his argument about the ‘right of rights’53 justifies the ban on prisoners voting. His answer is based on the idea that parliamentary sovereignty does not rest in theory or in history, but is rooted in the legitimacy of the democratic process. The right to vote is part and parcel of this process: The position that I defend … runs into the deepest challenge where the parliament is actually addressing the right to vote and the integrity and continuance of the electoral and democratic process … Parliament’s legitimacy and supremacy in our constitution is not based upon history and is not an abstract proposition; it is based on the fact that … Parliament has electoral credibility. Parliamentary decision-making and legislation is legitimate because people have the right to vote, not the other way around.54

Waldron hints at the necessary integrity of the political process (‘electoral credibility’), but he does not ask (either here or in other of his writings) how the political process can amend itself from within. It must be added that the usual incentives suggested by political constitutionalists, that is, being voted by those who were formerly excluded, does not have any efficacy here. Upon reflection, the case of the rights of prisoners seems to be more controversial than the focus on ‘discrete and insular minorities’ that characterised, for example, John Ely’s rightly celebrated work.55 In a well-functioning political constitution, most minorities can find allies in electoral coalitions and can bargain with other political forces to obtain important outcomes on matters very important to the minority itself. The situation of prisoners is closer to the case of pariah groups of people. These are groups with whom no one will want to deal even if they can guarantee a fair amount of votes.56 To advocate for the right of those convicted offenders may be seen as unpopular, and ‘displays of liberal progressiveness towards disliked minorities [is] highly risky, even for otherwise sympathetically minded politicians’.57 Disenfranchised people cannot influence the political process in any real effective way. Given these circumstances, it is difficult to support the idea that the same discriminatory political process would be capable to reform itself. Where would the push for reform come from? Which procedure would be able to register the opinions of the prisoners on the content of the right to vote? 53 

J Waldron, Law and Disagreement (Oxford, Oxford University Press, 1999) 198. J Waldron, JCHR, Oral Evidence, March 15, 2011, response to Q53. 55  J Ely, Democracy and Distrust (Cambridge, MA, Harvard University Press, 1980) 75–77. 56  Bellamy ((n 50) 255–58) recognises that this problem can affect the political process. 57  C Gearty, Civil Liberties (Oxford, Oxford University Press, 2007) 65. 54 

122  Marco Goldoni and Pablo Marshall Can they be the subject of legislation to which they did not contribute because they were excluded from the electoral process? All these doubts invite us not only to expand the jurisdiction on the right to vote to other institutions beyond Parliament (in this case, a supranational court), but they are also quite telling about the limits of the normative version of political constitutionalism. The latter, when exclusively based on the normative supremacy of parliamentary law-making, cannot properly address the issue of inclusion and exclusion from the political process. Hence, the possibility of hearing excluded voices through other institutions (courts, but also, for example, an ombudsman) cannot be ruled out from a serious political conception of constitutionalism. Regrettably, the reasoning used by both parties in the Hirst case has actually hampered the very possibility of a public confrontation on the content of the right to vote and it has pushed the discussion towards an issue of jurisdiction. As a consequence, the use of the MoA has turned out to be rather reductive in a case which deserved a full-fledged public discussion.

V.  THE MoA AND PROPORTIONALITY REVIEW: TRIVIALISING THE RIGHT TO VOTE

The suggested inclusion of courts as protectors of the right to vote should not make us forget that their capacity of enforcing that right is highly dependent on many contextual aspects mostly related to institutional and political culture. The real reason why some courts cannot deal adequately with the issue of PD may not be related to the fact that they are more poorly situated than the legislatures, but to the legal methods which the courts have deployed when solving these cases. Generally, these cases are not addressed by asking why we, as a democratic political community, should exclude offenders from political participation, but instead by asking whether the law that disenfranchises prisoners presents a legitimate legal limit to the right to vote. The use of proportionality as a substitution for engagement with the substantive principles at stake may explain the outcomes of the cases. There seems to be a strong connection between the use of proportionality as a method of review of the legislation and a presupposed right to disenfranchise serious offenders recognised finally in the Scoppola case. The risk we are keen to stress is that the MoA is reduced to an exercise in ‘procedural’ proportionality review where neither the content nor the aims of the piece of legislation at stake are strictly scrutinised. Proportionality is a legal doctrine that deals with the question of reasonableness rather than correctness. Depending on the concrete matter to be addressed, a range of measures resulting from the legislative sources would be considered reasonable and therefore proportionate. Proportionality, it is said, does not provide the only correct answer or an ‘optimal answer’, but constitutes a negative standard by which to exclude those policies that constitute unreasonable invasions of fundamental rights, with no gains for the interest pursued by the legislation under scrutiny. In sum, proportionality is ‘focused on what it is not rather than what it is’ (emphasis

The Prisoner’s Dilemma 123 in original).58 The concern with reasonableness rather than correctness therefore necessarily implies that courts applying proportionality must defer to the primary decision-maker, at least under certain respects. Deference can assume various forms. Two are of particular interest here, as they have impacted upon PD cases. They might be referred to as substantive and structural deference.59 Substantive deference is the spectrum of governmental actions from which the intervention of the courts and therefore the proportionality test are excluded. This account of deference is limitative of the precedence of judicial review and it has an exclusionary relationship with the application of the proportionality test. When courts identify certain areas that fall substantively within the spectrum of deference, they are restricted to adopting a passive attitude. This is the account of deference widely upheld by the ECtHR in its doctrine of the MoA, to which the British government emphatically referred in its claim that the issue of prisoners voting was something up to the UK Parliament to decide.60 In the case of the MoA doctrine, the substantive difference is based on the international character of the ECtHR. In Hirst, however, the ECtHR restricted the scope of this doctrine. In what seems to be one of the more confusing aspects of its reasoning, the Court stated that the MoA depends on the limitative legislation achieving a certain degree of proportionality. What can be called structural deference, in contrast, assumes the form of a restriction upon the Court in several aspects of the assessment of the legislation, based on the functional role of the courts and the recognition of parliaments or domestic authorities as the primary decision-makers. This encompasses proportionality and deference in a relationship of complementarity based on three factors: ‘(1) the decision-maker’s freedom to choose its own objectives’; (2) ‘the range of options available to the decision-maker’; and (3) ‘the scope of the decision’.61 These are matters on which the Court must necessarily defer to the primary decision-maker and which may have a far-reaching significance on the review’s overall effectiveness. For example, the courts cannot question the degree of satisfaction of the objective pursued by the legislature. This kind of deference is embedded within proportionality analysis, integrating instances of deference within the test of judicial application. This second form of deference has played an inadvertent, though fundamental, role in the judicial decisions regarding PD. It is crucial to notice that, at the normative level, structural deference is grounded, unlike the substantive deference of the MoA doctrine, on the democratic legitimacy and the particular institutional advantages of parliaments and other domestic authorities. This is relevant because the ECtHR seemed to be

58  A Brady, Proportionality and Deference under the UK Human Rights Act: An Institutional Sensitive Approach (Cambridge, Cambridge University Press, 2012) 10–11. 59  This is not the distinction offered by Letsas, who also talks about substantive and structural dimensions, in this case, of the MoA doctrine, in Letsas (n 6). 60 See Hirst (n 1) [47]–[48]. 61  Brady (n 58) 85.

124  Marco Goldoni and Pablo Marshall only partially aware of this. In a controversial aspect of its judgment on Hirst, the ECtHR withdrew the substantive deference on electoral issues traditionally granted to signatory states of the ECHR on the basis of the poor deliberative performance of the UK Parliament. Overall, the use of proportionality reasoning by the Court was unsatisfying both from the point of view of the quality of judicial reasoning and from a politically salient conception of the right to vote. On the one hand, the use of proportionality has helped to mask the concrete political reasons behind the exclusion of offenders and the particularities of the genuine political problem of PD. This problem is related mainly to the approach adopted by the ECtHR to deal with the purpose of PD. This may be observed in the shift from the candidness of the former UK Prime Minister’s opinion, when he claimed that prisoner voting makes him feel physically ill,62 inspired by the rhetoric of law and order, into the invariably milder, general and abstract versions concerned with enhancing civic responsibility and the rule of law given in the courtroom. However, this obviously transcends the problem of the use of public reason. The legal question of the compatibility of PD with the ECHR has obscured the genuine political question at stake, which is why we must exclude citizens who have committed a criminal offence from political participation, went largely unaddressed. On the other hand, proportionality has tended to produce compromise solutions. This tendency stems from the attempt to render compatible what are in fact two antagonistic principles by resorting to the economic language of optimisation. This is a consequence that is immanent to the use of the idea of proportionality. Under this scheme, which promises to compensate the loss of fundamental rights protection with efficient public policy-making, the limitation of fundamental rights is not seen as an exceptional event, but as normal. Even when this cannot fully explain the tolerance of the court towards PD, it permits us to understand the frequent recourse to the over-inclusiveness argument based on the ‘rule of law’, which works as a discursive mechanism for stating that the government cannot arbitrarily apply PD.63 On the other hand, it also supplies reasons to the governments that want to advance policies which make them appear ‘tough on crime’. The claims from the other side, it is appropriate to keep in mind, argued that PD was unconstitutional tout court, independently of its scope, and that a blanket ban was constitutional. The final upshot of drawing a distinction between minor and serious offenders was put forward by the court, which may be explained as an effort to produce a reasonable compromise. The use of this type of proportionality has masked the real political objectives of the state authorities and has produced shallow compromise solutions. A critical element to understand why this has happened might be the role of what has been 62 

David Cameron, PM. See Hansard HC Deb 3 November 2010, vol 517, col 921. See L Beckman ‘Global Diffusion and the Role of Courts in Shaping the Human Right to Vote’ in A Brysk (ed), Globalization of Law and Human Rights: From Norms to Fulfillment (London, Routledge, 2013) 63–82. 63 

The Prisoner’s Dilemma 125 called structural deference with regard to the identification of the proper purpose of the legislation. If the measure is correctly advancing a legitimate purpose, all the rest of the proportionality judgment in the context of a dialogue between the court and the national authorities amounts to a process of bargaining and accommodation between the interests at stake. The fundamental right in question can be affected massively if the satisfaction of the public interest is also an important factor. With the good institutional design of a measure and a cogent argumentative apparatus, human rights can be reduced considerably on the basis of efficient governmental activity. In all cases involving PD, the court did not analyse the purpose, but it took for granted that it was a legitimate one. A closer look to the ‘proper purpose’ stage of proportionality review is necessary. This stage seeks the determination of the constitutionality (or legitimacy) of the purpose advanced by the limitative legislation. It is therefore a normative rather than means-ends assessment. This stage normally examines the constitutionality or compatibility of the purpose in itself, without consideration of the intervention upon the fundamental right at stake. Only once the purpose itself has been admitted as legitimate does the analysis turn to the means that the legislation uses to advance that purpose.64 The main problems affecting this assessment are those linked with the identification of the purpose.65 At least two elements of this identification might prove contentious and should be of crucial importance for PD cases: first, the question of who must decide what the purpose is; and, second, how much concrete explanation and precision the purpose requires. Who should determine the purpose is problematic because it remains unclear whether it is the objective purpose of the law or the subjective purpose of the legislators that the courts must consider.66 This relates to the second question of whether the purpose must be judicially determined (subjectively or objectively) or if the government can articulate it according to some degree of deference. This aspect is fundamental to understand the burden of proof.67 The ECtHR not only deferred to the national governments concerning the decision of identifying the purpose, but it also paid scant attention to the coherence between the arguments offered by the government officers in Strasburg and the legislative discussion of PD in Parliament. This is problematic because if what is under examination in the judicial review is a concern for the public justification of the limitation of a fundamental right, it cannot be assumed that the motives are proper and focus the inquiry only in the way in which those motives are implemented.68 64 

See, eg, Barak (n 8) 257–85. ibid 285–302. 66  The idea of objective purpose necessarily turns the attention of the assessment of the Court to the impact that the limitative legislation has in the real world, taking it far from the express purpose of the parties involved. 67  See W Sadurski, ‘Motives and Effects in the US Constitutional Law and Theory’ (2004) 14/43 Sydney Law School Research Paper 2–3. 68  See ibid 5. 65 

126  Marco Goldoni and Pablo Marshall The formulation of the purpose also implies certain questions. They can be presented in very abstract and general terms or in terms that are more concrete and precise. The second alternative allows a better judgment of both the legitimacy of the purpose and the causal relation which obtains between the purpose and the limitative legislation. In contrast, more abstract and general purposes should generate suspicion, as the ‘triviality of the goal is a reason to believe that it is merely a pretext for an action de facto motivated on grounds which are not publicly citeable’.69 All the judgments accepted as valid the abstract and diffuse idea that PD is a form of punishment and that it enhances civic responsibility and respect for the rule of law. The ECtHR in Hirst even defended the idea that ‘abstract or symbolic purposes could be valid of their own and should not be downplayed simply for being symbolic’.70 When governments are given discretion to define the purpose and subsequently do so in abstract and diffuse terms, as in the cases under analysis, there are reasons to suspect that the justification may assume a purely rhetorical role, ‘susceptible … to distortion and manipulation’71 or that ‘the public value justification is a façade’.72 This practice limits the possibility of including within the proportionality test the notion of ‘excluded reasons’ as part of the protection of rights.73 The government has incentives to act strategically and to avoid articulating a purpose that could be affected by those flaws. Once the purpose of the legitimate legislation has been accepted, the optimisation of the right takes place against its background. When this is the case, by accepting deferentially a general and abstract purpose freely formulated by the government, the Court limits its own possibilities to question the rational connection and the necessity of the measure in the latter stages of the proportionality analysis.74

VI.  REASONING ON THE RIGHT TO VOTE

It is time to take stock of the two main threads going through this chapter. First of all, in light of the relevance of PD for the definition of the political process, we would have expected a different reaction from the political constitutionalists’ perspective. PD provided a powerful opportunity to show, at the same time, their commitment to the importance of parliamentary politics and to the political protection of fundamental rights. In fact, we think that from the normative perspective, the starting point for addressing prisoners’ voting rights would have 69 

ibid 6. See also Porat and Cohen-Eliya (n 8) ch 4. Hirst (n 1) [37] 71  Sauvé (n 14) [22]. 72  Sadurski (n 67) 6. 73  M Kumm, ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in G Pavlakos (ed), Law, Rights and Discourse (Oxford, Hart Publishing, 2007) 142–48. 74  Plaxton and Lardy (n 14) 121. 70 

The Prisoner’s Dilemma 127 been political throughout. Given the strategic importance of the right to vote, its substantial content ought to have been put at the centre of the discussion and the commitment to its protection ought to have been tested in the Hirst saga. This entails a drastic revision of how to frame the discussion on the use of the MoA: not a confrontation on the last word on who should adjudicate the right in question, but a juxtaposition between the right to vote as a legally defined individual right to access the political process and the right to vote as a recognition of its intrinsic political value. The latter (the recognition of the intrinsic value of the right to vote) never really entered the discussion despite a whole tradition of political thought conceiving the right to political participation as the quintessential human right.75 From this different framing, a second concern on the appropriate role played by proportionality review in these cases would immediately emerge. In fact, the collapse of the MoA into a procedural and mild exercise of proportionality review blocks any substantial discussion on the value of the right to vote for a democratic society. In brief, the use of the MoA as a test of proportionality, despite its pretension of reasonableness, has actually served the purpose of hampering the political relevance of what is essentially a political right. There are at least two arguments to prefer an alternative methodology rather than merely a different standard of review in the case of PD.76 First, as seen in the previous section, proportionality systematically defers elements of judgment to the primary decision-maker, which in the case of PD can lead to arbitrary ­decisions, guided by the aim of a watering-down compromise. Second, and essentially, PD operates with a binary code—that of inclusion/ exclusion from the electorate—that makes the idea of a ‘proportional limitation’ of the right to vote an intricate operation. This is relevant because disenfranchisement has a quite radical consequence on the right to vote: it involves its total suppression. Considering the disenfranchisement that affects only serious offenders but excludes those offenders completely from the franchise as a proportional limitation of the right to vote is to disregard the right to vote as a human right. The citizen, in this case, is completely deprived of the right, even when the electorate as a collective is affected only marginally.77 Taking the right to vote

75  The paradigmatic reference goes to Hannah Arendt’s idea of the right to have rights: The Origins of Totalitarianism (New York, Shocken Books, 2004) 341–84. 76  An example of a claim for different standards of scrutiny is represented by Judge Björgvinsson in his minority opinion in Scoppola: ‘In the context of this case Article 3 of Protocol No. 1 has two important aspects to it. One relates to the organisation of the electoral system in a given country, that is, the organisation of the electoral process, division into constituencies, the number of representatives for each constituency, and so on. The other relates to the rights of individuals to vote in general elections. As regards the former, the Contracting States have, and should have, wide discretion or a wide margin of appreciation … However, as to the latter point … the margin is much narrower. It follows that the necessity of limitations on the rights of citizens in a democratic society to vote in the election of the legislative body must be subject to close scrutiny by the Court’ [25]. 77 See Sauvé (n 14) [55].

128  Marco Goldoni and Pablo Marshall as an individual right implies an acknowledgement of the fact that PD implements a binary code. Proportionality review alone tends to obscure this basic fact. Hence, it might be helpful to draw a distinction between voting eligibility and voting regulation. The former is relative to the recognition of political citizenship in a community and constitutes the core (the essence) of the right, while the latter is about the discipline of participation to voting procedures. The distinction acknowledges that voting eligibility is a binary question about whether somebody should be included in the electoral body and therefore is entitled to vote, or should be excluded and therefore does not have such a right. Voting eligibility cannot be proportionally limited because it is an all-or-nothing question. As a consequence, questions of voting eligibility and other normative aspects of the right to vote must be addressed differently. While questions of eligibility must be resolved using a deontological method due to its binary nature, other questions may be arguably balanced against competing interests. The previous remarks are offered as a tentative way to address the question of why a democratic political community should exclude offenders from the franchise. Moreover, understanding that voting eligibility is a binary question implies that the process of legal argumentation and decision is directly oriented to resolve the question about whether or not the subject or group of subjects are entitled to the right to vote. In this way, the tensions between participation and exclusion, a truly political question, could be rearticulated and expressed without ambiguities.

7 Social Sensitivity, Consensus and the Margin of Appreciation NICHOLAS BAMFORTH

I

T IS SOMETIMES suggested that the margin of appreciation occupies a place of particular importance in the treatment by the European Court of Human Rights (ECtHR) of the ‘qualified’ rights found in the European Convention.1 This chapter focuses on two sets of ECtHR decisions involving claims based on ‘qualified’ rights and competing considerations relating to the existence of social sensitivity in relevant signatory states: namely, cases concerning minority sexual orientations and same-sex partnerships (litigated under Article 8, alongside ­Articles 12 and 14); and concerning artistic expression which causes offence to those with particular religious sentiments (litigated under Article 10). Both employ as part of the margin what Eyal Benvenisti calls the ‘consensus doctrine’: an approach whereby the discretion available to signatory states depends in part on the extent to which there is ‘common ground’, ‘consensus’ or ‘agreement’ at the national level concerning the aim of the restriction under challenge,2 or according to which the evolution of the margin is related to the developing legal position in the states. Benvenisti suggests that supporters of this approach (which he himself opposes) categorise it as involving both political constraints and principled considerations. More generally, Judge Mahoney has observed that the ECtHR’s degree of deference to national authorities varies ‘depending upon the nature of the context and the language of the text in issue’.3

1  See, eg, Nicholas Lavender, ‘The Problem of the Margin of Appreciation’ [1997] European Human Rights Law Review 380, 381; R St J Macdonald, ‘The Margin of Appreciation’ in R St J Macdonald, F Matscher and H Petzold (eds), The European System for the Protection of Human Rights (Leiden, Martinus Nijhoff, 1993) 83; Michael R Hutchinson, ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’ (1999) 48 International & Comparative Law Quarterly 638, 640; Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) 224–45. 2  Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 New York Journal of International Law and Politics 843, 851. On ‘consensus’ generally, see Howard C Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Dordrecht, Kluwer, 1996), 46, 48–49, 114, 166, 170, 180, 194, 195; George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 OJLS 705, 731–32 and A Theory of Interpretation of the European Convention on Human Rights (Oxford, Oxford University Press, 2010) xi–xii, 11, 81, 84, 91–95, 120–26. 3  P Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11 Human Rights Law Journal 57, 80.

130  Nicholas Bamforth It will be argued in this chapter that ‘legal’, ‘principled’ and ‘political’ factors all play a role in general accounts of the margin and in relation to the cases concerning ‘consensus’ and socially sensitive matters. As such, it may be helpful to understand the margin more generally in terms of a combination of legal, principled and political considerations. In the first section, two general accounts of the margin are assessed. Subsequent sections explore the two sets of cases.

I.  APPROACHES TO THE MARGIN OF APPRECIATION

Martin Loughlin suggests that if politics is seen as a ‘competitive struggle for power’, a ‘binding constitution’—in legal format—might be seen as ‘devis[ing] the basic rules of the game … to provide some stability’.4 This distinction is useful when considering general accounts of the margin of appreciation, two examples of which are those presented by Howard Yourow and R St J Macdonald. The two authors seem initially to emphasise the role of political factors in the margin’s operation. For example, Yourow suggests that it is ‘through the politics of the Strasbourg system, as well as the jurisprudence itself, that the distinguishing features of a single right or identifiable class of rights will emerge’, with the ‘politics of the system’ including factors ‘such as the backgrounds, ages, and judicial temperaments of the judges … and staffs; budgetary stresses and strains; the Strasbourg image and moral authority within the States Parties; the system’s willingness to embrace controversial issues of nation-wide or continent-wide import; and the myriad of interpersonal and ideological faultlines to be compromised or otherwise overcome within the decision-making processes of … [the] … Court’.5 These factors, alongside ‘external influences such as public and media opinion, all have an impact on the sources of law and methods of interpretation used by the Strasbourg organs’.6 Nonetheless, Yourow also stresses that the text of the Convention is a crucial source of law. His focus is seemingly on the idea that the text is open to several methods of interpretation by judges, and that judicial decision-making is conditioned by the degree of consensus and integration within the society or societies in which the judges concerned operate. Hence, at the ECtHR level, ‘an older and more juridically conservative generation of … judges’,7 who often deferred to national governments and ‘reflected a socially conservative European consensus on volatile issues of the moment’,8 gave way to ‘a more mature Court ready to assert its own control function at the expense of state discretion by measuring national

4  Martin Loughlin, Sword and Scales: An Examination of the Relationship Between Law and Politics (Oxford, Hart Publishing, 2000) 192. 5  Yourow (n 2) 182–83. 6  ibid 186. 7  ibid 25. 8  ibid 54.

Social Sensitivity, Consensus and the MoA 131 latitude more flexibly, with mixed results for the parties’.9 As a result, an initially wide margin later became more variable. On this approach, therefore, while the main emphasis is on the ‘policy’ or ‘political’ factors involved in the ECtHR’s decisions, the basic Convention text nonetheless provides an overall framework within which these take place; in other words, something which is not in itself among the politically contested factors. Meanwhile, Macdonald categorises the margin as a pragmatic device concerned with ‘the delicate task of balancing the sovereignty of the Contracting Parties with their obligations under the Convention’.10 It is ‘the amount of latitude left to national authorities once the appropriate level of review has been decided on by the Court’, and neither aspect is open to definition in the abstract.11 On this view, a ‘universal and general formula’ has never been articulated to govern the operation of the margin.12 In reality, ‘it is probable that there is … no common denominator’ between the situations in which it has been used, and the margin ‘has played the role of a lubricant in the working of the Convention’, enabling the ECtHR to deal with situations and needs ‘which could not have been envisaged at the time of the drafting of the Convention but which in its work daily confront it’.13 Macdonald suggests that given the practical problems which come before the ECtHR, reaching the Court from a diverse range of states with distinct and sometimes contradictory traditions and approaches, the margin’s task is to ‘reconcile this lack of homogeneity in the audience at large with the recognition and development of an effective and reasonably uniform standard of protection for Convention rights within the jurisdiction’ of each state.14 The margin—‘more a principle of justification than interpretation’—helps the ECtHR ‘show the proper degree of respect for the objectives that a Contracting Party may wish to pursue, and the trade-offs that it wants to make, while at the same time preventing unnecessary restrictions’ on rights protection.15 As a balancing device: ‘The justification of the margin of appreciation is usually a pragmatic one’. It ‘gives the flexibility needed to avoid damaging confrontations between the Court and Contracting States over their respective spheres of authority’.16 Macdonald criticises the margin for preventing the emergence of a coherent principled approach to determining when intervention by the ECtHR is appropriate17 (a ‘principled’ approach being generally understood as something involving consistent decision making and turning on generally applicable values or considerations deriving from a theory of justice or fairness). More ­generally,

9 

ibid 180. See also 131 and 136. Note also Lavender (n 1) 380, 381. Macdonald (n 1) 83. ibid 85. 12  ibid 122. 13 ibid. 14 ibid. 15  ibid 123. 16 ibid. 17  ibid 124. 10  11 

132  Nicholas Bamforth his characterisation of the margin has been described by Benvenisti as resting on ‘judicial politics’.18 However, it would be wrong to suggest that this is the only ingredient in his account. For, in discussing Dudgeon v UK19 and Muller v Switzerland20—both of which, as we shall see below, involved matters of moral sensitivity in the societies concerned—he suggested that the ECtHR may have given different weights to the rights involved and invoked different ideas of morality. Dudgeon involved an interference with a most intimate aspect of a person’s private life, requiring particularly serious reasons to exist if it were to be justified. Artistic expression, at issue in Muller, was ‘perhaps … seen somewhat ­differently’.21 It is unclear whether Macdonald saw the ECtHR’s differing assessment of each right as turning only on pragmatic considerations or as also involving more principled considerations. However, he went on to make a statement which it is extremely hard to understand save in (at least somewhat) principled terms: ‘In Dudgeon, the Court appears to have taken a more universal approach to standards of morality [than in Muller]: it found a violation of respect for private life despite the fact that strongly opposing views prevailed in the community in which Dudgeon lived.’22 This seemingly reflects, rightly, the point that universal and localised approaches to morality entail, at a level of principle, different understandings of justice. As such, there appears to be space in Macdonald’s account for more than just pragmatic considerations, even though he generally categorises the margin as a pragmatic balancing device. This point is reinforced by his association (discussed earlier) of the margin with ‘justification’ and ‘a proper degree’ of respect—terms which, again, are not necessarily confined in their focus merely to pragmatic matters. These points about Yourow’s and Macdonald’s theories of the margin of appreciation are reflected in John Bell’s analysis of judicial decision making more generally. Bell suggests that in typical cases, judges are restricted by clear rules and precedents. However, in ‘hard cases’, in which the standards of the legal system merely seem to narrow the available options rather than providing an answer, it is ‘difficult to make’ a strong distinction between adjudication and other functions of government.23 Bell therefore argues that the judge is an ‘interstitial legislator’, whose function differs from that of an elected legislator in degree rather than in kind. When deciding a hard case, a judge has to exercise their own judgment concerning the suitability of the different options and decide what is best for society, something which is ‘very similar to the way a legislator goes about making new rules’.24 Even against this background, however, there are certain limitations which cause judges to exercise their creativity within narrower confines than elected 18 

Benvenisti (n 2) 846. Dudgeon v UK App No 7525/76, 22 October 1981 (1982) 4 EHRR 149. 20  Muller v Switzerland App No 10737/84, 24 May 1988 (1991) 13 EHRR 212. 21  Macdonald (n 1) 105. 22 ibid. 23  John Bell, Policy Arguments in Judicial Decisions (Oxford, Oxford University Press, 1983) 226. 24  ibid 18. 19 

Social Sensitivity, Consensus and the MoA 133 l­aw-makers. Judges do not have carte blanche to engage in wide-ranging law reform, instead being concerned with remedying specific deficiencies in the existing overall framework, which they have to leave intact.25 Furthermore, authoritative judicial decisions need to be explained and justified in terms of the standards and reasons accepted within the legal system concerned. A court uses reasons to justify its decision to the audiences it addresses: for example, by fitting it into the general framework of the law and showing that it constitutes (in terms of precedent, for instance) an appropriate exercise of the court’s institutional power.26 A full account of law cannot be based on politics alone. This last point deserves clarification. It is sometimes argued that any exercise of state power, including by a court, is—simply as an exercise of such power— political. Whether or not this is correct, Bell is effectively suggesting that certain exercises of power (however they are categorised) need to use techniques or tools which are associated specifically with the mechanisms of law and legal dispute resolution. It is at this level that his account allows for the legal and the political to be distinguished. Against this background, it is also unsurprising that theoretical accounts of the margin involve what might be termed both political and legal elements. Applying Bell’s analysis, it may be appropriate to identify concerns in the margin of appreciation case law about the appropriate limits to the ECtHR’s decision-making authority and to characterise these as ‘political’ in the sense that they concern the powers of an institution. However, Yourow’s categorisation of judicial decision-making as ‘political’ by reference simply to decision-makers’ personal attitudes may well go too far in ignoring the distinctive ways in which, as Bell identifies, court decisions are expected to be explained and justified (including against a background framework such as the Convention text), even if the substance of legislative and judicial decision-making cannot be cleanly separated. Meanwhile, despite Macdonald’s references to pragmatism, space clearly remains in his account for principled and/or other non-pragmatic ingredients. While Yourow’s and Macdonald’s theories are offered here as examples,27 it will become clear in the next two sections—each of which concerns a set of examples drawn from the case law—that a combination of legal, principled, political and/or other pragmatic factors can also be seen in the case law.

II.  SEXUALITY AND SAME-SEX PARTNERSHIPS

The case law concerning minority sexual orientation and same-sex partnerships provides a strong illustration of the ECtHR’s evolving reading of an area in light of changes in national-level practice—in other words, an evolving ‘consensus’. 25 

See generally ibid, ch 2 in relation to the distinctive reasons used by judges. ibid 23–24. See also Ronald Dworkin, Taking Rights Seriously (London, Duckworth, 1977) 86–88, 123–30, 280 and A Matter of Principle (Oxford, Oxford University Press, 1986) 2–3, 17–31, 69–71. 27  Against this background, it is also unsurprising that George Letsas (n 2), whose theory is explicitly based on principle and Ronald Dworkin’s theory of interpretation, is strongly critical of the margin. 26  See

134  Nicholas Bamforth Questions concerning the most appropriate characterisation of ‘consensus’ reasoning in these cases are therefore of considerable relevance. As background, it should be noted that the case law concerning same-sexattracted individuals has been slightly unpredictable, with some decisions defying strongly held moralistic local sentiment and others (often using the margin) displaying deference.28 In Dudgeon, Article 8 was held to preclude the criminal prohibition of consensual, private sexual activity between adults of the same sex and (as noted earlier) the ECtHR stressed that notwithstanding the wide margin attaching to Article 8, particularly serious reasons were needed for a restriction to pass muster where it concerned a most intimate part of a person’s private life.29 This was despite the strong religious sentiment in favour of the restriction in the locale concerned. A similar spirit was evident in Smith and Grady v UK30 and LustigPrean and Beckett v UK,31 in which the ECtHR precluded investigations into a person’s private life followed by their automatic discharge from military service due to their lesbian or gay sexual orientation, and emphasised that states enjoy only a narrow margin when determining the necessity of a restriction within Article 8(2). A difference of treatment (in relation to a substantive Convention right) based on sexual orientation may also violate Article 14 in the absence of an objective and reasonable justification, so that a refusal to award custody of a child to a biological parent due to the latter being gay could not, without more, survive scrutiny.32 Additionally, in Karner v Austria, the ECtHR stated that a difference due to sexual orientation would ‘require particularly serious reasons by way of justification’ and repeated that states had only a narrow margin of appreciation in this context.33 By contrast, however, the ECtHR considered it ‘quite natural’ in Fretté v France that ‘the national authorities … should enjoy a wide margin of appreciation when they are asked to make rulings’ about the suitability of a single gay man—in contrast to a single heterosexual—to adopt a child.34 In that context, ‘delicate’ issues were involved, there was little common ground among the signatory states, and the law appeared to be in a transitional stage. Perhaps similarly, a broader margin seems to have been shown to the national authorities in Laskey, Jaggard, and Brown v UK in criminalising private, consensual sado-masochistic

28 For a summary of the case law, see Vallianatos v Greece App Nos 29381/09 and 32684/09, 7 November 2013 (2014) 59 EHRR 12 [70]. Note David Feldman’s general criticisms of art 8: ‘The Developing Scope of Article 8 of the European Convention on Human Rights’ [1997] European Human Rights Law Review 265. 29  Dudgeon (n 19). See also Norris v Ireland App No 10581/83, 26 October 1988 (1991) 13 EHRR 186. 30  Smith and Grady v UK App Nos 33985/96 and 33986/96, 27 September 1999 (1999) 29 EHRR 493. 31  Lustig-Prean and Beckett v UK App Nos 31417/96 and 32377/96, 27 September 1999 (1999) 29 EHRR 548. 32  Da Silva Mouta v Portugal App No 33290/96, 21 December 1999 (2001) 31 EHRR 47 [28]–[36]; Fretté v France App No 36515/97, 26 February 2002 (2004) 38 EHRR 21 [32]. 33  Karner v Austria App No 40016/98, 24 July 2003 (2004) 38 EHRR 24 [37]. Note also [41]. 34  Fretté (n 32) [41].

Social Sensitivity, Consensus and the MoA 135 sexual activity,35 even if at first sight it is hard to see the conceptual distinction from private non-sado-masochistic sexual activity in Dudgeon. When considered against this mixed background, the ECtHR’s explanation of its later case law on same-sex partnerships in terms of adjustments to the margin seems clearly to suggest forward ‘consensus’-driven movement. Three decisions to date have been key: Schalk and Kopf v Austria, in which the First Section ­Chamber took an expansive view of Article 8, but held that states were not yet obliged under Article 12, or Article 14 coupled with Article 8, to grant same-sex couples access to marriage or an alternative registration scheme;36 Vallianatos v Greece, in which the introduction of a national law to establish civil unions for opposite-sex but not same-sex couples was held by the Grand Chamber to breach Article 14 in conjunction with Article 8;37 and Oliari v Italy, concerning the absence of national legislation permitting same-sex marriage or any other type of civil union, in which the failure to provide a specific legal framework for same-sex couples was held by the Fourth Section Chamber to breach Article 8.38 The speed with which the ECtHR’s position has shifted is noteworthy given that as recently as 2001, it held in Estevez v Spain that long-term same-sex partnerships did not fall within the ‘family life’ limb of Article 8 and that ‘despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals’, this was an area in which, ‘given the existence of little common ground’, signatory states ‘still enjoy a wide margin of appreciation’.39 Importantly, the three later cases seemingly used a combination of policy or politics-related developments as well as legal interpretation or lawrelated factors in discarding Estevez. In Schalk and Kopf, the Chamber found that same-sex partnerships fell within the ‘family life’ limb of Article 8 rather than just ‘private life’.40 It acknowledged that the margin had started to shift. When earlier cases were decided, ‘despite the growing tendency in a number of European States towards the legal and judicial recognition of stable de facto partnerships between homosexuals’, it was, given the ‘existence of little common ground between the Contracting States … an area in which they still enjoyed a wide margin of appreciation’.41 In the period since Estevez, however, there had been a ‘rapid evolution of social attitudes towards same-sex couples’ in many states, with a ‘considerable number’ affording some form of legal recognition to same-sex partners.42 It was thus ‘artificial to maintain 35  Laskey, Jaggard, and Brown v UK App Nos 21627/93, 21628/93 and 21974/93, 19 February 1997 (1997) 24 EHRR 39 [36], [42]–[48]. ADT v UK App No 35765/97, 31 July 2000 (2001) 31 EHRR 33, especially [38], represents the adoption of a narrower margin of appreciation where group sexual activity not involving violence was at issue. 36  Schalk and Kopf v Austria App No 30141/04, 24 June 2010 (2011) 53 EHRR 20. 37  Vallianatos (n 28) [75]. 38  Oliari v Italy App Nos 18766/11 and 36030/11, 21 July 2015 (2015) 40 BHRC 549. 39  Estevez v Spain, 10 May 2001, Admissibility Decision no 56501/00, unreported. 40  Schalk and Kopf (n 36) [90]–[95]. The point was reiterated in Vallianatos (n 28) [73]. 41  ibid [92]. 42  ibid [93]. See also [26]–[30].

136  Nicholas Bamforth the view that … a same-sex couple cannot enjoy “family life” for the purposes of Article 8’.43 The ambit of the margin, in determining whether a claimant had been subjected to a difference of treatment without an objective and reasonable justification, varied according to the circumstances, the subject matter and its background, and ‘one of the relevant factors may be the existence or non-existence of common ground between the laws of the Contracting States’.44 While differences of treatment based on sexual orientation required particularly serious reasons, a wide margin was usually allowed for general matters of economic or social strategy. The Chamber was willing to begin from the premise that same-sex couples were just as capable as opposite-sex couples of entering into stable, committed relationships, and both groups had a relatively similar need for legal recognition and protection. However, Article 14 coupled with Article 8 did not impose an obligation to grant same-sex couples access to marriage when the more specifically drafted Article 12 did not. In relation to whether Austria should have provided an alternative, nonmarital form of legal recognition sooner than it did, the evolving margin again became crucial; there was an ‘emerging European consensus towards legal recognition of same-sex couples’ which had ‘developed rapidly over the past decade’.45 However, a majority of signatory states had not yet made provision for legal recognition, so ‘the area in question must … still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes’ and the exact status conferred by an alternative means of recognition.46 Turning to Article 12, the claimants argued that marriage had evolved and that there was no objective justification for excluding same-sex couples from its scope. Here, the Chamber ruled that the wording of Article 12—which talked of marriage as being between men and women—was deliberate. The argument that Article 12 should now be read as obliging states to allow same-sex couples to marry because the Convention was a living instrument which must be interpreted in present-day conditions was also rejected: ‘Although the institution of marriage has undergone major social changes since the adoption of the Convention … there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage.’47 In classic margin reasoning, the ECtHR stressed that ‘marriage has deep-rooted social and cultural connotations which may differ largely from one society to another’, so that it ‘must not rush to substitute its own judgment in place of that of the national authorities’.48 In Vallianatos, the ECtHR reiterated that differences based on sexual orientation required particularly serious and weighty reasons by way of justification, and that 43 

ibid [94]. ibid [98]. 45  ibid [105]. 46  ibid. See also [108] and Oliari (n 38) [163]. 47  Schalk and Kopf (n 36) [58]. 48  ibid [62]. 44 

Social Sensitivity, Consensus and the MoA 137 the margin was (now) narrow in this area. While ‘protection of the family in the traditional sense’ remained ‘in principle, a weighty and legitimate reason which might justify a difference in treatment’,49 the Convention was a living instrument to be interpreted in the light of present-day conditions and, when choosing how to protect the family, the state ‘must necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life’.50 In light of the (now) narrow margin, the state had to show that it was necessary to exclude those in same-sex relationships from national civil union legislation in order to achieve specified legitimate aims. Although there was no consensus among signatory states, nine now provided for same-sex marriage and 17 for some form of civil partnership for same-sex couples (an increase from the figures at the time of Schalk and Kopf). Greece was one of only two exceptions to the trend whereby same-sex couples were included in legislation enacted to create registered partnership as an alternative to marriage. The fact that ‘at the end of a gradual evolution, a country finds itself in an isolated position as regards one aspect of its legislation’ did not necessarily imply a conflict with the Convention, but convincing and weighty reasons for the national position had not been offered by the state.51 Oliari involved a positive obligation claim: the notion that, in order to ensure effective respect for Article 8, Italy was obliged to provide national legislation allowing for same-sex partnerships. As the ECtHR noted, Article 8 encompasses positive obligations52 and—as with negative obligations to refrain from acting— regard must be had to the fair balance to be struck between the interests of the individual and that of the community. A margin was given to states in implementing positive obligations, but the breadth thereof in relation to private life would be restricted where a particularly important facet of an individual’s existence or identity was at stake, and would be wider where there was no consensus among Convention states concerning either the relative importance of the interest or the best means of protecting it (particularly where sensitive moral or ethical issues were involved), or where the state was required to strike a balance between competing private and public interests. On the facts, the national-level position lacked content and did not provide same-sex couples with the necessary stability. There was a conflict between the law and the social reality affecting the claimants, and in the absence of marriage, same-sex couples had a particular interest in obtaining the legal protection associated with a civil union or registered partnership. States had a certain margin concerning the exact content of a registered partnership scheme, 49 

Karner (n 33) [40], invoked in Vallianatos (n 28) [83]. Vallianatos (n 28) [84]. See also Christine Goodwin v UK App No 28957/95, 11 July 2002 (2002) 35 EHRR 18 [75]; Karner (n 33) [41]. 51  Vallianatos (n 28) [92]. 52 On art 8, see Mosley v UK App No 48009/08, 10 May 2011 (2011) 53 EHRR 30 [108] and [111]. Generally, see Alastair Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford, Hart Publishing, 2004) chs 1 and 6. 50 

138  Nicholas Bamforth but Oliari concerned only the general need for legal recognition and protection of same-sex couples, given the complete absence of legislation permitting same-sex marriage or any other type of civil union. Furthermore, ‘the movement towards legal recognition of same-sex couples which has continued to develop rapidly in Europe’ since Schalk and Kopf was significant: 24 out of 47 signatory states had now enacted legislation.53 However, while finding against Italy under Article 8, the ECtHR used ‘consensus’ to reach a different conclusion based on Article 12: ‘despite the gradual evolution of states on the matter’—11 Contracting States now recognised same-sex marriage— Article 12 did not impose a positive obligation to grant same-sex couples access to marriage.54 This question was left to national law, with the national authorities ‘best placed to assess and respond to the needs of society’.55 Within the three cases, at least two sets of apparently ‘legal’ factors played a clear part. One was the drafting of Article 12: the words ‘men’ and ‘women’ were treated in Schalk and Kopf as preventing a broader interpretation of marriage.56 The weight placed on the clear wording of Article 12, in contrast to the generality of Articles 8 and 14, might thus suggest that the treatment of the margin could not be down to politics, in the first sense identified by Yourow, alone. Instead, the text can still sometimes be crucial, albeit—as Sandra Fredman has suggested—as something which ‘anchors rather than concludes the discussion’ and ‘sets out the prima facie principles whose meaning and weight need to be continually elaborated upon’.57 It is also significant that the ECtHR was careful to separate its analyses of Articles 14 and 8 and Article 12, including in relation to the margin, suggesting that formal drafting-based divisions within the Convention as a whole remain of importance. The second factor was the distinction between positive and negative obligations, as evidenced in Oliari. While the ECtHR was willing to recognise the existence of both types of obligation in relation to Article 8—and to uphold a claim in the circumstances of Oliari—the fact that it applied the positive/negative obligations jurisprudence rather than simply reaching a decision on the facts is a good illustration of the perceived need to explain its decisions in a legally comprehensible fashion in light of existing authority—in itself, as noted earlier in relation to Bell’s analysis, a refutation of the thesis that judicial decisions are ‘just’ politics. Nonetheless, the relevant cases rested heavily on the ECtHR’s reading of the changing consensus within the signatory states, as evidenced by the growing number which have granted legal protection to same-sex partnerships.58 As was noted 53 

Oliari (n 38) [178]. ibid [192]. 55  ibid [191]. 56  The interpretation in Christine Goodwin (n 50) that art 12 allowed transsexuals to marry might arguably be explained on the basis that the parties were now of opposite sexes. 57  Human Rights Transformed: Positive Rights and Positive Duties (Oxford, Oxford University Press, 2008), p.106. 58  A powerful illustration might be Hämäläinen v Finland App No 37359/09, 16 July 2014 [2015] 1 FCR 379 [61], [68], [71], [75], in which the ECtHR reiterated its support for a positive obligation to grant legal recognition to gender reassignment, but accorded the state a wide margin concerning the consequences of reassignment for a person’s marital status. 54 

Social Sensitivity, Consensus and the MoA 139 in Schalk and Kopf, ‘one of the relevant factors’ when it came to the ‘scope of the margin of appreciation’ in relation to Articles 14 and 8 may be ‘the existence or non-existence of common ground between the laws’ of the signatory states.59 The consensus theory is seemingly fairly closely related to political considerations, insofar as the ECtHR is making an assessment of its institutional position in contrast with the responsibilities of the states within the Convention system—a factor highlighted in Macdonald’s analysis of the margin. It has direct consequences for the allocation of decision-making competence between the ECtHR and nationallevel authorities in a given area. Furthermore, if consensus requires a certain level of national support to exist before the ECtHR will agree that a particular interpretation of a Convention right deserves to be adopted, then the decision concerned might be said not to be confined to interpretation of the character of the right simply on its own terms. ‘Consensus’ might even look, on this basis, like headcounting among the signatory states. It was noted earlier that Macdonald calls for the emergence of a principled approach in place of the margin in its current form, and the same-sex partnership cases may be thought to demonstrate the pragmatism of the ‘consensus’ approach. Interestingly, though, the ECtHR was also careful to conduct separate assessments of consensus in relation to marriage and to other types of registered partnership, while placing equal emphasis in each situation on changes of view at the national level—something which might be thought to echo the formal separation between Articles 8 and 12 in the Convention. The issue of how best to characterise the ‘consensus’ approach is perhaps particularly significant in the same-sex partnerships context, given the speed of recent developments coupled with the earlier uncertainties in the case law. If, as seems likely, a combination of political and legal factors are important, it may be worth noting that the cases discussed in this section have all involved longer-standing Convention signatory states. Against this background, it will be interesting to see how the ECtHR evaluates same-sex partnerships cases from those Eastern European countries in which anti-LGBT public opinion and legislation is deeply embedded.60 Put bluntly, how widespread, strong and settled a consensus might in fact be necessary on a cross-Council of Europe basis in order for the ECtHR to confidently override hostile local opinion and legislation in such situations (by analogy with Dudgeon) rather than being tempted to defer to national sentiment (as in some of the cases to be considered in the next section)? It is certainly possible to identify factors which look more ‘legal’ and those which look more ‘political’ in the case law to date, but a partnership rights case from an especially anti-LGBT Eastern European signatory state is likely to provide a key practical test for how far decision-making which invokes consensus can ultimately be seen as involving consistently applied principles. For now, we can at least be clear that a mixture of legal and political considerations is in play. 59 

Schalk and Kopf (n 36) [98]. European Union Agency for Fundamental Rights, Homophobia, Transphobia and Siscrimination on Grounds of Sexual Orientation and Gender Identity in the EU Member States: Summary of Findings, Trends, Challenges and Promising Practices (Luxembourg, Publications Office of the European Union, 2010). 60  See

140  Nicholas Bamforth III.  MORALLY CONTENTIOUS EXPRESSION

According to Handyside v UK, national authorities may make the initial assessment of the ‘reality of the pressing social need’ for a restriction on expression under Article 10,61 and a margin may apply. Subject to ECtHR supervision, ‘absolute uniformity’ is not necessarily required: ‘since the Contracting States remain free to choose the measures which they consider appropriate, the Court cannot be oblivious of the substantive or procedural features of their respective domestic laws’.62 As the ECtHR importantly noted in Sunday Times v UK, ‘the scope of the domestic power of appreciation is not identical as regards each of the aims listed in Article 10(2)’.63 Handyside established that where a restriction was imposed for the protection of morals, national authorities were: ‘By reason of their direct and continuous contact with the vital forces of their countries … in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them.’64 Furthermore, in Wingrove v UK, the ECtHR noted that ‘a wider margin of appreciation is generally available … in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion’.65 As Sunday Times made clear, such a margin did not by contrast carry over automatically to ‘the far more objective notion of the “authority” of the judiciary’ as a basis for a restriction.66 Turning to morally contentious expression, ‘consensus’ is associated in some Article 10 judgments with the aim of the restriction imposed and in others with the national measure more generally. Focusing on the restriction in play, Handyside stressed that it was ‘not possible to find in the domestic law of the various Contracting States a uniform European conception of morals … especially in our era which is characterised by a rapid and far-reaching evolution of opinions’.67 It was similarly noted in Otto-Preminger-Institut v Austria that it was ‘not possible to discern throughout Europe a uniform conception of the significance of religion in society … even within a single country such conceptions may vary’.68

61  Handyside v UK App No 5493/72, 7 December 1976 (1979–80) 1 EHRR 737 [48]. See also The Observer and the Guardian v UK App No 13585/88, 26 November 1991 (1992) 14 EHRR 153 [59(c)]. 62  Sunday Times v UK App No 6538/74, 26 April 1979 (1979–80) 2 EHRR 245 [61] and also [59]; Handyside (n 61) [47]; Lingens v Austria App No 9815/82, 8 July 1986 (1986) 8 EHRR 407 [40]; Lehideux and Isorni v France App No 55/1997/839/1045, 23 September 1998 (2000) 30 EHRR 665 [51]. 63  Sunday Times (n 62) [59], building on Handyside (n 61) [47]; see also Mahoney (n 3) 79. In relation to art 8, a similar point is made: see Leander v Sweden App No 9248/81, 26 March 1987 (1987) 9 EHRR 433 [59]; Peck v UK App No 44647/98, 28 January 2003 (2003) 36 EHRR 719, [77]. 64  Handyside (n 61) [48] (see also [49]). 65  Wingrove v UK App No 17419/90, 25 November 1996 (1997) 24 EHRR 1 [58]. 66  Sunday Times (n 62) [59]. For critical analysis of ‘morals’ cases, see Letsas, A Theory of ­Interpretation (n 2) 120–23. 67  Handyside (n 61) [48]. See also Muller (n 20) [35]. 68  Otto-Preminger-Institut v Austria App No 13470/87, 20 September 1994 (1995) 19 EHRR 34 [50]. See also Wingrove (n 65) [57]; Giniewski v France App No 64016/00, 31 January 2006 (2007) 45 EHRR 23 [44].

Social Sensitivity, Consensus and the MoA 141 As a c­ onsequence, it was impossible to arrive at a comprehensive definition of what constituted a permissible interference with expression directed against the religious feelings of others, and ‘a certain margin of appreciation’—in practice a relatively wide one—was ‘to be left to the national authorities in assessing the existence and extent of the necessity of such interference’.69 More succinctly, the ECtHR stated in Giniewski v France that the ‘absence of a uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions’ broadened the margin when regulating expression.70 In contrast, the ECtHR was clear in Sunday Times that the law and practice in signatory states when it came to upholding the authority of the judiciary ‘reveal[ed] a fairly substantial measure of common ground’,71 so that ‘a more extensive European supervision corresponds to a less discretionary power of appreciation’ in that area’.72 In Handyside, the ECtHR was concerned on the facts with a publication which was morally contentious at the time concerned: namely, ‘The Little Red School Book’, a handbook which provided school pupils with details of alternative lifestyles, including sexual conduct. The book had been confiscated and a fine was imposed on the applicant. Following the application of margin of appreciationdriven reasoning, no violation of Article 10 was found and, as Macdonald suggests, the ECtHR ‘placed particular emphasis on the absence of a uniform European conception of morals and on the fact that the requirements of morals vary from time to time and from place to place’.73 Muller and Otto-Preminger-Institut—two prominent decisions concerning artistic expression and religious sentiment—give similar prominence to the role of ‘consensus’.74 The ECtHR confirmed in Muller that a democratic society demanded pluralism, tolerance and broadmindedness.75 Since those ‘who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society’, there was an obligation on the state not to encroach ‘unduly on their freedom of expression’.76 However, such individuals were not immune from the possibility of limitations being imposed.77 69 

Otto-Preminger-Institut (n 68) [50]. Giniewski (n 68) [44]. See also Wingrove (n 67) [58]. Note also the argument by Judge Mahoney in ‘Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments’ [1997] European Human Rights Law Review 364 that the case law accords greater discretion to national authorities where expression is restricted in the interests of morality or religion. 71  Sunday Times (n 62) [59]. 72  ibid (on the facts, however, the ECtHR could not deem a national-level injunction to be unnecessary just because it would not have been granted in a different legal system: at [61]). 73  Macdonald (n 1) 88. 74  Note also Wingrove (n 65), concerning film certification, in which—without mentioning artistic expression—it was stressed that there was little scope for restricting freedom of speech or debate on matters of public interest, in contrast with the context at issue ([58]). 75  Muller (n 20) [32]–[33], adapting the formulation from Lingens (n 62) [39]–[41] from news articles to the context of paintings. 76  Muller (n 20) [33], citing Handyside (n 61) [49]. 77  Muller (n 20) [34]. 70 

142  Nicholas Bamforth The claimant had been fined for obscenity and his paintings had been confiscated in order to protect morals. The ECtHR reiterated the lack of a uniform European conception of morals, leaving the state authorities in principle in a better position to give an exact opinion about the ambit of morals and the need for a penalty. In the circumstances, the fine and confiscation were found not to be disproportionate, in part because the paintings were confiscated for eight years rather than destroyed—an observation which in practical terms indicated relatively lighttouch review by the ECtHR. A broad margin was also evident in Otto-Preminger-Institut, which was heavily influenced (as previously noted) by the absence of a ‘consensus’ concerning permissible restrictions on expression directed against religious feelings. In holding that the seizure and forfeiture of a film which mocked Roman Catholicism and was scheduled for public viewing in a heavily Catholic area was justifiable due to the need to respect the rights of others in the form of their religious beliefs, the ECtHR was seemingly very deferential to the national authorities. The duties and responsibilities of those engaging in expression were held to include, in the context of religious opinions and beliefs, ‘an obligation to avoid as far as possible expressions that are gratuitously offensive to others … and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs’.78 Provided that a restriction was proportionate, it might be necessary in certain democratic societies to prescribe attacks on objects of religious veneration. Although access to the film was restricted by an admission fee and an age limit—factors which might be expected to limit its potential to generate offence— its advertisement and the extent of public knowledge of the subject matter and basic content made the screening sufficiently ‘public’ to cause offence. Therefore, the national authorities did not exceed their margin of appreciation in seizing the film, even though this made it permanently impossible for the film to be shown in Austria. Echoing Muller, the national authorities were deemed to be better placed than international judges to assess the need for the restriction given the situation obtaining locally at the time. In their handling of the margin, these decisions seem to be relatively conclusory in their statements concerning the role of the international judge, leaving little space for considerations of principle. The association, already discussed, of the notion of ‘consensus’ with political factors is thus reinforced, for the absence of other reasoning makes it hard to explain the cases save in terms of a concern to emphasise the limits of the ECtHR’s institutional role. This point is reinforced by Judge Mahoney’s argument that while Handyside characterised expression as enabling participation in decision making (necessitating public debate and a free media) and promoting self-fulfilment, a rationale which encompasses artistic and counter-cultural expression, most cases have prioritised the first rationale over the second. As such, journalistic speech—identified with the role of the press as a

78 

Otto-Preminger-Institut (n 68) [49].

Social Sensitivity, Consensus and the MoA 143 ‘public watchdog’—enjoys greater protection than does artistic speech.79 On this view, the ‘“political” function of freedom of expression as enabling informed public debate’ has been given ‘a higher level of protection’ than its ‘“cultural” function of contributing to self-fulfilment’.80 As a consequence: ‘A greater degree of discretion has, as a matter of judicial policy, been accorded to the Contracting States in determining, and then in implementing, national law as to artists’ freedom to include in their works provocative or offensive material.’81 The term ‘judicial policy’ in this analysis may well be thought to suggest a role for the ECtHR akin to that of the ‘interstitial legislator’ identified by Bell, thus placing the function of the margin in the current cases beyond the purely legal. In contrast to the artistic expression cases, some more visibly ‘legal’ factors can in fact be identified in Article 10 case law which concerns other types of speech. For example, the ECtHR has stressed that where an expression-related positive obligation is being sought, the state in principle enjoys a wide margin of appreciation82 and that requests for prior restraints, including injunctions, have to be subjected to the ‘most careful scrutiny’.83 In both situations, the type of legal burden imposed by the protection or remedy sought affects the ambit of the ­margin. If we were to accept Yourow’s categorisation of ECtHR decision-making as turning on the subjective preferences of the judges, then this phenomenon could still be described as ‘political’. However, that view was earlier rejected as ignoring some distinctive features of legal decision-making. If, instead, we accept (as Bell suggests) that some ingredients or styles of reasoning are more visibly legal than others, then these examples would fall under the ‘legal’ heading, in turn suggesting that the role of the margin in Article 10 cases viewed as a whole can be understood to involve legal and political factors. Furthermore, it is important to recall the tension identified by Macdonald between the ideas of morality employed by the ECtHR in Dudgeon, a sexual privacy case, and Muller. It is possible that the different approaches were due to (unexplained) pragmatic considerations or amounted to simple inconsistency. However, it is also quite possible that the ECtHR valued sexual privacy (in Dudgeon) more highly than artistic expression (in Muller) and for normative rather than policy reasons adopted different bases for evaluating the moralityrelated justifications advanced to support the state-level restrictions in play in each case. As a consequence, it is possible—depending upon the interpretation adopted—to categorise a case such as Muller as involving hidden considerations of principle. In summary, it is interesting to see that in its operation in the morally contentious expression cases, the margin of appreciation seems at face value to focus on 79  Mahoney (n 70) 378. Note the normative rejoinder by Lord Lester, ‘Universality versus Subsidiarity: A Reply’ [1998] European Human Rights Law Review 73, 76–81. 80  Mahoney (n 70) 379. 81  ibid 375. 82 See Mosley (n 52). 83  The Observer and the Guardian (n 61) [60].

144  Nicholas Bamforth the political notion of ‘consensus’ to the exclusion of other factors. Nonetheless, the adoption of a particular approach to morality in Muller—whether or not it is correct—may involve a concealed decision of principle, and in applications of the margin across the broader field of Article 10, it seems clear that legal factors sometimes come into play. As such, the cases considered in this section involve not so much a general mix of legal and political factors, as was the case with the legal recognition of same-sex partnerships, but instead a foreground role for the political in a context which sometimes also entails decisions of principle and which might—if appropriate—require reference to legal considerations. Therefore, while the political seems predominant due to the role of ‘consensus’, the operation of the margin of appreciation in the present context cannot be fully explained by political considerations alone.

IV. CONCLUSION

This chapter has sought to explore the roles of legal and political factors in relation to the margin through considering two general theories relating to its operation as well as key ECtHR decisions concerning same-sex partnerships and morally contentious expression. It seems clear that in all of these contexts, political factors cannot provide a complete explanation of the margin’s operation and that reference to legal considerations and sometimes arguments of principle is necessary. The ‘consensus’ approach, which plays a key role in the case law concerned, is seemingly a political factor, and the operation of the margin from case to case may involve—as Macdonald suggests—a policy choice concerning the respective weight to be granted to Strasbourg-level and national-level decision-making. However, this does not exhaust the full range of factors in play in the same-sex partnership or morally contentious expression cases. While the relationship between non-political and political factors is slightly different in the two groups of cases—most likely as a practical consequence of the issues and claims involved in each—both types of factor have a part to play. This conclusion is reflected in our analysis of Yourow’s and Macdonald’s theories—at first sight, both politicsfocused—concerning the margin in general. Unless one is convinced that judicial decision-making turns solely on personal preferences and that references to texts and precedents are merely a cover story for judicial politics, it therefore seems clear that there is a role for legal factors (at least as identified by Bell) in a complete understanding of ECtHR decisions involving the margin of appreciation.

8 Religious Rights and the Margin of Appreciation DOMINIC MCGOLDRICK

I. INTRODUCTION

T

HIS CHAPTER CRITIQUES the operation of the margin of appreciation (MoA) within the European Convention on Human Rights (ECHR) system with respect to religious rights.1 It submits that the sophisticated manner in which the European Court of Human Rights (ECtHR) uses the MoA as an instrument of supervision renders it a defensible conceptual and intellectual instrument for international bodies supervising polycentric rights claims, which is commonly the case in relation to religious rights. The MoA necessarily has to be complex, but that does not necessarily render the outcome of its application as uncertain. The identification or otherwise of consensus is crucial to the application of the MoA. That being so, it is submitted that it is the issue of ‘framing’ the question or issue to which consensus relates that is crucial to the application of the MoA. Indeed, it is commonly determinative thereof. Finally, the chapter highlights the importance to the application of the MoA of the national domestic processes of reasoning, contestation and evaluation. Each section considers aspects of the MoA but with specific reference to ECHR jurisprudence relating to religious rights. Section II examines the place of ­religious rights in the ECHR. Section III briefly examines the relationship between ­religion and human rights. Section IV addresses the jurisprudence of the ECtHR on ­religious rights. Section V critiques the role and operation of the MoA in religious cases, including the major decisions in which the MoA has been central to the outcome. Section VI contains a case study of the judgment of the Grand ­Chamber

1  For more general critiques, see D Spielmann, ‘Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of ­European Review?’ (2011–12) 14 Cambridge Yearbook of European Legal Studies 381 (updated at www.echr.coe. int/Documents/Speech_20140113_Heidelberg_ENG.pdf); A Legg, The Margin of Appreciation in International Human Rights Law Deference and Proportionality (Oxford, Oxford University Press, 2012); D McGoldrick, ‘A Defence of the Margin of Appreciation and An Argument for its Application by the Human Rights Committee’ (2016) 65 International & Comparative Law Quarterly 21.

146  Dominic McGoldrick of the ECtHR in Fernandez Martinez v Spain in 2014. Section VII offers some concluding reflections.

II.  THE PLACE OF RELIGION IN THE ECHR

Although it might appear an obvious point, it should be clearly stated that, on any historical or textual basis, religious rights should have significant weight in the ECHR system. The protection of religious rights and religious identities has a strong historical pedigree.2 The inclusion of Article 9 ECHR on ‘Freedom of thought, conscience and religion’ and of ‘religion’ as a prohibited ground of discrimination in Article 14 were relatively uncontroversial.3 The right to education in Article 1 of Protocol 2 was qualified by the obligation on states to ‘respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions’. Freedom of religion is reflected in all of the major international and regional human rights treaties. It is a classic civil right and is, in that sense, special or exceptional.4 The MoA can be viewed as a device to accommodate differing views on the exceptionalism of religion and the consequences thereof.

III.  RELIGION AND HUMAN RIGHTS

Whatever the place of religion in the ECHR, religions and human rights can nonetheless be understood as constituting different and competing normative orders. Thus, the relationship between religion and human rights law is inherently unstable and ambivalent.5 Religion professes faith in a God’s (or some other higher being’s) prescriptions rather than human laws on the rights of men or women. Religions want the protection of the human rights law for their social and institutional existence and for their beliefs and manifestations thereof. However, they are instinctively prone to resist any incursion by the laws into areas where their beliefs and decisions are assessed for compatibility with national or international secular 2  See M Evans ‘An Historical Introduction to the Freedom of Religion and Belief ’ in C Durham et al (eds), Facilitating Freedom of Religion and Belief: The Oslo Coalition Deskbook (The Hague, Kluwer, 2004), 1. 3  See C Evans, Freedom of Religion under the European Convention on Human Rights (Oxford, Oxford University Press, 2001) 38–50. Protection against discrimination based on religion is also reflected in art 1 of Protocol 12 (2000) (general right to equality) (20 ratifications as of 18 April 2017). 4 See A Shachar, ‘Demystifying Culture’ (2012) 10(2) I-CON International Journal of Constitutional Law 429; D McPherson, ‘The Claims of Religious Identities in Secular Societies’ (2016) Supplement 13 Journal of Religion & Society, available at https://dspace2.creighton.edu/xmlui/bitstream/ handle/10504/74611/2016-20.pdf?sequence=1&isAllowed=y. 5  See R Sandberg, Law and Religion (Cambridge, Cambridge University Press, 2011); K Woods, Human Rights (Basingstoke, Palgrave Macmillan, 2014) 84–103.

Religious Rights and the Margin of Appreciation 147 norms, including human rights norms.6 Particular difficulties are created if courts try to assess religious doctrines and beliefs or subject them to secular standards of rationality, proportionality and non-discrimination.7 From a human rights perspective, religious claims for autonomy are often perceived as seeking privilege and exceptionalism.8 Thus, religions are always in a troublesome dialectical relationship with human rights law.9 Major judicial decisions by the ECtHR can signal the ways in which that relationship is evolving within the more than 820 million persons who live in the communities of the 47 Member States of the Council of Europe. Since the entry into force of the ECHR, most states have become home to a greater multiplicity of religions with their own history and traditions. The eastward expansion of ECHR membership after 1989 has further multiplied this effect.10 Both across and within the now 47 Member States, there is a wide variety of Church–state relations.11 At the foundation of the ECtHR’s approach to religious rights within the Council of Europe communities, and its development of the concept of the MoA to frame its human rights assessment of the consequences of those relationships, has been its repeated acceptance that it is ‘not possible to discern throughout Europe a uniform conception of the significance of religion in society; even within a single country such conceptions may vary’.12 Thus, the application of the MoA 6  See generally I Leigh and R Adhar, Religious Freedom in the Liberal State (2nd edn, Oxford, Oxford University Press, 2013). A contemporary example relates the compatibility of male circumcision with human rights standards; see M Germann and C Wackernagel, ‘The Circumcision Debate from a ­German Constitutional Perspective’ (2015) 4 Oxford Journal of Law and Religion 442; Freedom of Religion and Living Together in a Democratic Society, Report and Resolution of Committee on Culture, Science, Education and Media of the Parliamentary Assembly of the Council of Europe, Doc 13851 (6 July 2015). 7  See P Edge, ‘Determining Religion in English Courts’ (2012) 1 Oxford Journal of Law and Religion 402; R Sandberg, ‘The Right to Discriminate’ (2011) 13 Ecclesiastical Law Journal 157; AS Hofri-Winogradow, ‘A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State’ (2010/2011) 26 Journal of Law and Religion 57; R (on the Application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246 (concerning biblical beliefs in administering corporal punishment to discipline children). 8 See MD Evans et al (eds), The Changing Nature of Religious Rights under International Law (Oxford, Oxford University Press, 2015) (particularly the chapters by Glendon, Bielefeldt and Petkoff); D McGoldrick, ‘Religion and Legal Spaces—In Gods We Trust; in the Church, We Trust, But Need to Verify’ (2012) 12 Human Rights Law Reports 759. 9  See M Hunter-Henin (ed), Law, Religious Freedoms and Education in Europe (Farnham, Ashgate, 2011). 10  See T Loenen and JE Goldschmidt (eds), Religious Pluralism and Human Rights in Europe: Where to Draw the Line? (Antwerp, Intersentia, 2007); L Zucca, A Secular Europe: Law and Religion in the European Constitutional Landscape (Oxford, Oxford University Press, 2012). 11  See N Doe, Law and Religion in Europe: A Comparative Introduction (Oxford, Oxford University Press, 2011); R Adhar and I Leigh, ‘Is Establishment Consistent with Religious Freedom?’ (2004) 49 McGill Law Journal 635; F Tulkens, ‘The ECHR and Church–State Relations: Pluralism versus Pluralism’ (2008–09) 30 Cardozo Law Review 2575; C Evans and CA Thomas, ‘Church–State Relations in the European Court of Human Rights’ (2006) 3 Brigham Young University Law Review 699; J Temperman, ‘Are State Churches Contrary to International Law?’ (2013) 2 Oxford Journal of Law and Religion 119. 12  Müller and Others v Switzerland, A 10737/84 [30], [35]; Otto-Preminger Institut v Austria, A 13470/87 (20 September 1994) [50].

148  Dominic McGoldrick means that some restrictions on rights may vary from one state to another or even from one region to another within the same state, especially a state that has opted for a federal type of political organisation.13 In observing that, in such cases, only serious reasons could lead the ECtHR to substitute its own assessment for that of the national and local authorities, which are closer to the realities of their country, the ECtHR stressed the subsidiary nature of the ECHR system.14 On the foundation of variety of Church–state relations, the ECtHR commonly overlays findings that in the particular issue of religious rights under dispute, as framed by the ECtHR—be it religious dress,15 the financing and taxation of churches16 or the protection of the ‘rights of others’ in relation to forms of expression that constitute attacks on their religious convictions17—there is similarly no common European standard or rule. Such a finding is usually a precursor to the ECtHR holding that the state will have acted within its MoA. The unstated finding is that the ECtHR has considered that it is not for it to establish such a common European standard. The consequence in human rights terms is that there is a kind of renvoi of the issue back to national political and legal systems. Good examples are Lautsi v Italy,18 the consequence of which was to return the issue to the Italian courts to await future judgments on the application of the principle of secularism under the Italian Constitution, and Şahin v Turkey,19 the consequence of which was to return the issue to the Turkish jurisdiction to await political and legal developments. Subsequent to the ECtHR’s findings of no violation of Article 9, constitutional and administrative provisions were effectively re-interpreted by the executive and the Turkish Parliament to allow the wearing of religious clothing at universities and by civil 13 See Murphy v Ireland, A 44179/98 (10 July 2003) (upholding the ban of religious advertising in Northern Ireland); Mouvement Raëlien Suisse v Switzerland [GC], A 16354/06 [64]–[65]. 14  Murphy (n 13); A Mowbray, ‘Subsidiarity and the European Convention on Human Rights’ (2015) 15 Human Rights Law Reports 313. 15  See M Ssenyonjo, ‘The Islamic Veil and Freedom of Religion, the Rights to Education and Work’ (2007) 6 Chinese Journal of International Law 653; R McRea, ‘The Ban on the Veil and European Law’ (2013) 13(1) Human Rights Law Reports 50; D McGoldrick, ‘Extreme Religious Dress: Perspectives on Veiling Controversies’ in I Hare and J Weinstein (eds), Extreme Speech and Democracy (Oxford, Oxford University Press, 2009) 400–29; E Howard, Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Oxford, Routledge, 2012); M Hunter-Henin, Why the French Don’t Like the Burqa: Laïcité, National Identity and Religious Freedom’ (2012) 61 International & Comparative Law Quarterly 1. 16 See Spampinato v Italy, A 23123/04 (29 April 2010: inadmissible). On taxation by Churches see Klein and Others v Germany, A 10138/11 and others, (6 April 2017). 17  Wingrove v UK, A 17419/90 [58]; IA v Turkey, A 42571/98 [25]; I Leigh, ‘Damned if They Do, Damned if They Don’t: The European Court of Human Rights and the Protection of Religion from Attack’ (2011) 17 Res Publica 55. 18  Lautsi v Italy [GC], A 30814/06 (18 March 2011). 19  Şahin v Turkey, A 44774/98 (10 November 2005). For criticisms, see C Evans, ‘The “Islamic ­Headscarf ” in the European Court of Human Rights’ (2006) 7 Melbourne Law Journal 52; T Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 International & Comparative Law Quarterly 395; A Vukulenko, ‘“Islamic Headscarves” and the ­European Convention on Human Rights: An Intersectional Perspective’ (2007) 16 Social and Legal Studies 183; P Bosset, ‘Mainstreaming Religious Diversity in a Secular and Egalitarian State: The Road(s) Not Taken in Leyla Şahin v Turkey’ in E Brems (ed), Diversity and European Human Rights (Cambridge, Cambridge University Press, 2013) 192–217.

Religious Rights and the Margin of Appreciation 149 servants and Members of Parliament.20 Absent such developments at the national level, the issue will stay within the MoA, a sufficient consensus or international trend will evolve such that the ECtHR considers it appropriate to deduce the existence of a common European standard or, exceptionally, that the ECtHR will consider that societal developments and understandings or international trends have evolved to the point that it is necessary and appropriate to establish a common European standard notwithstanding the absence of any greater consensus.21 ­However, it must be acknowledged that a finding of no violation based on the MoA may lead to a levelling down of national protections.22

IV.  THE JURISPRUDENCE OF THE ECtHR ON RELIGIOUS RIGHTS

Commentators have commonly submitted that the ECtHR does not have a very strong record in protecting religious rights and point to the MoA as allowing states to reduce the historical protection afforded to those rights as societies evolve and new human rights claims are made.23 However, in the interests of a balanced perspective, it is important to acknowledge that the ECtHR’s religion-related jurisprudence has been very strong in four critical respects. First, it has considered that the values in Article 9 are at the foundations of a democratic society, that maintaining true religious pluralism is inherent in the concept of a democratic society24 and that the ‘autonomous existence of religious communities is indispensable for pluralism in a democratic society and is at the heart of the protection’ afforded by Article 9.25 Respect for the autonomy of religious communities recognised by the state implies that the state should accept the right of such communities to govern themselves in accordance with their own rules and interests.26 States have a duty of denominational neutrality and impartiality vis-à-vis religious ­communities.27 20  R Smith, ‘Why Turkey Lifted its Ban on the Islamic Headscarf ’ National Geographic (12 O ­ ctober 2013), available at http://news.nationalgeographic.com/news/2013/10/131011-hijab-ban-turkey-islamicheadscarf-ataturk. 21  The classic example of the latter exceptional situation is Christine Goodwin v UK, A 28957/95. See also K Henrard, ‘How the European Court of Human Rights’ Concern Regarding European Consensus Tempers the Effective Protection of Freedom of Religion’ (2015) 4 Oxford Journal of Law and Religion 398. 22  See E Brems, ‘Human Rights: Minimum and Maximum Perspectives’ (2009) 9 Human Rights Law Reports 349. 23  See J Martínez-Torrón, ‘The (Un)protection of Individual Religious Identity in the Strasbourg Case Law (2012) 1 Oxford Journal of Law and Religion 363; A Power-Forde, ‘Freedom of Religion and “Reasonable Accommodation” in the Case Law of the European Court of Human Rights’ (2016) 5 Oxford Journal of Law and Religion 575. 24  Kokkinakis v Greece, A 14307/88 (25 May 1993) [31]. 25  Hasan and Chausch v Bulgaria, A 30985/96 (26 October 2000) [62]. 26 See Fernandez Martinez v Spain, A 56030/07 (12 June 2014), considered in section VI below. 27 See Sindicatul ‘Pastorul cel Bun’ v Romania [GC], A 2330/09 (9 July 2013) (in refusing to register the applicant union, the state had simply declined to become involved in the organisation and operation of the Romanian Orthodox Church, thereby observing its duty of denominational neutrality under art 14 ECHR).

150  Dominic McGoldrick The state’s role is as the neutral and impartial organiser of the practice of r­ eligions, faiths and beliefs.28 The state’s duty of neutrality and impartiality towards r­ eligious communities and beliefs precludes it from assessing the legitimacy validity of ­religious beliefs as long as they attain a certain level of cogency, seriousness, ­cohesion and importance,29 or the ways in which those beliefs are expressed.30 However, what the ECtHR accepts as ‘neutrality’ is complex and can cover a variety of different approaches to Church–state relations.31 Many of those approaches could reasonably be described as endorsement or preference for religion, but, short of being coercive, they can survive a Convention challenge.32 The ECtHR sees this neutral role as conducive to public order, religious harmony and t­olerance in a democratic society, particularly between opposing groups. Second, although it has refused to define ‘religion’33 and ‘belief ’, the ECtHR has interpreted them very widely indeed,34 arguably too widely.35 Third, it has afforded states little by way of MoA to impose registration, re-registration or institutional requirements on religious organisations. In Metropolitan Church of Bessarabia and Others v Moldova,36 the ECtHR rejected justifications based on upholding national law and constitutional principles, threat to territorial integrity, protecting social peace and understanding among believers and proportionality.

28  Refah Partisi and Others v Turkey [GC], A 41340/98 (13 February 2003) [91]. See generally R Sandberg (ed), Religion and Legal Pluralism (Farnham, Ashgate, 2015). 29 See Cumhuriyetçi Eğitim Ve Kültür Merkezi Vakfı v Turkey, A 32093/10 (2 December 2014) (a system for granting exemptions from payment of electricity bills for places of worship under Turkish law—based on an assessment by the Turkish courts on the basis of an opinion issued by the authority for religious affairs to the effect that Alevism was not a religion—thus entailed discrimination on the ground of religion: violation of art 14 taken together with art 9). 30 See Hasan and Chaush v Bulgaria, A 30985/96 (26 October 2000) [78]. 31  See MD Evans and P Petkoff, ‘A Separation of Convenience? The Concept of Neutrality in the Jurisprudence of the European Court of Human Rights’ (2008) 36 Religion, State and Society 205; K Koukouzelis, ‘Neutrality, Religious Symbols and the Question of a European Public Space’ (2008) 4 Politics in Central Europe 41. 32 In Lautsi v Italy (n 18), the Grand Chamber re-affirmed that art 2 of Protocol 1 was principally a protection against ‘indoctrination’ by the state and teachers. However, see Folgero v Norway [GC], A 15472/02 (29 June 2007) and Hasan and Eylem Zengin v Turkey (9 October 2007), in which the ECtHR conducted a very detailed evaluation of the educational course concerned, thereby effectively narrowing the MoA. See also S Langlaude, ‘Indoctrination, Secularism, Religious Liberty and the ECHR’ (2006) 55 International and Comparative Law Quarterly 919; V Ibarra, ‘Why Appearances Matter: State Endorsement of Religious Symbols in State Schools in Europe after Lautsi’ (2014) 3 UCL Journal of Law and Jurisprudence 262; A Mawhinney, ‘Crucifixes, Classrooms and Children: A Semiotic Cocktail’ in J Temperman (ed), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom (Leiden, Brill, 2012) 93. 33  cf the description of religion adopted by the UK Supreme Court in R (Hodkin and Another) v Registrar-General of Births, Deaths and Marriages [2013] UKSC 77 [57] (Lord Toulson). See also R Dworkin, Religion without God (Cambridge, MA, Harvard University Press, 2013). 34  See D Harris et al, Law of the ECHR (3rd edn, Oxford, Oxford University Press, 2014) 592–94. 35  The argument is that an over-broad scope effectively trivialises religion by treating arguably lesser beliefs, such as vegetarianism or veganism, as on a par with it. On positive obligations relating to a Buddhist’s vegetarian beliefs while in prison, see Vartic v Romania, A 14150/08 (17 December 2013). 36  Metropolitan Church of Bessarabia and Others v Moldova A 45701/99 (13 December 2001).

Religious Rights and the Margin of Appreciation 151 Tolerance was not a substitute for recognition.37 In Jehovah’s Witnesses of Moscow v Russia,38 the ECtHR found that there had been an unjustified dissolution and refusal to re-register the Jehovah’s Witnesses religious community in Moscow. In doing so, it rejected six proffered justifications. In Magyar Keresztény Mennonita Egyház and Others v Hungary,39 the ECtHR held that the mere absence of apparent consensus on the ‘framework of organizational recognition of otherwise accepted religions’40 could not give rise to the same degree of deference to the national authorities’ assessment, especially when the matter concerned the framework of organisational recognition of otherwise accepted religions (formerly fully fledged churches) rather than the very acceptance of a certain set of controversial teachings as a religion. Otherwise non-traditional religions could lose the ECHR’s protection in one country essentially due to the fact that they were not legally recognised as churches in others. Although the ECtHR acknowledged the importance of ‘historical-constitutional traditions’ when judging a particular system of Church–state relations,41 on the facts it did not accept that the scheme reflected Hungarian historical tradition fully and disregarded more recent historical developments.42 The problematic differential treatment was not in line with the state duties of neutrality and impartiality under Article 9.43 In Kimlya and Others v Russia,44 a requirement that a religious organisation had to be in existence in the region for at least 15 years violated Article 9, interpreted in the light of Article 11. The ECtHR referred to a report which noted that ‘there were no other OSCE participating States that required the lengthy existence of a religious organisation before registration was permitted’.45 There is similarly little by way of MoA to impose requirements on individuals to publicise or declare their religious beliefs or the absence thereof.46 Limited elements of disclosure may be acceptable for taxation purposes.47 Fourth, although states are accorded a broad MoA regarding Church–state religious issues, in terms of Article 14 ECHR, differential treatment based on religion is treated as a ‘suspect’ ground of discrimination. Thus, stronger reasons will be required to justify distinctions based on a difference on religion

37  See also Doğan and Others v Turkey, A 62649/10 (concerning the rejection of the request made by a number of Turkish nationals belonging to the Alevi faith for provision of a religious public service which, they maintain, has been granted to date exclusively to the majority of citizens, who subscribe to the Sunni understanding of Islam), oral hearing held by the Grand Chamber in June 2015. 38  Jehovah’s Witnesses of Moscow v Russia, A 302/02 (10 June 2010). 39  Magyar Keresztény Mennonita Egyház and Others v Hungary, A 70945/11 (8 April 2014) [88]. 40  ibid [68]. 41  ibid [100]. 42  ibid [101]. 43  ibid [111]. 44  Kimlya and Others v Russia, A 76836/01 and 32782/03 (1 October 2009) [100]–[102]. See also Genov v Bulgaria, A 40524/08 (23 March 2017). 45  ibid [100]. 46  Buscarini and Others v San Marino [GC], A 24645/94 (18 February 1999); Sinan Isik v Turkey, A 21924/05 (2 February 2010); Grzelak v Poland, A 7710/02 (15 June 2010); Dimitras and Others v Greece, A 42837/06 (3 June 2010). 47 See Wasmuth v Germany, A 12884/03 (17 February 2011).

152  Dominic McGoldrick alone and the state’s MoA will be narrower even in sensitive issues such as parental rights,48 or areas where otherwise there would be a wider MoA, such as taxation or the provision of public services.49 The preferential treatment of one religion in such contexts will commonly result in a violation of Article 14.50 The wide MoA under Article 9 and the suspect approach under Article 14 are not logically inconsistent.51 The latter simply reflects the strength of the contemporary prohibition against discrimination.

V.  THE MoA IN RELIGIOUS CASES

A.  The Role of Consensus in Determining the MoA In determining the MoA in relation to religious rights, the ECtHR may, if appropriate, have regard to any consensus and common values emerging from the state practices of the parties to the ECHR.52 It makes increasing use of the comparative method to indicate the degree of any European consensus on a particular issue. Consensus is significant in terms of weighting, but it is not necessarily decisive or determinative. If an emerging consensus is not based on settled and longstanding principles established in the law of the Member States, but rather reflects a stage of development within a particularly dynamic field of law, this will not decisively narrow the MoA.53 An important aspect of looking for the consensus is that the jurisprudence on particular controversial issues may take significant periods of time to be established. This gives states time to reflect on comparative social, economic and scientific developments both within and across states. For example, ECHR jurisprudence on conscientious objection to military service— which is usually based on religious or equivalent beliefs—changed significantly over a 37-year period from the European Commission’s decision in Grandrath 48 See Hoffman v Austria, A 12875/87 (23 June 1993); Palau-Martinez v France, A 64927/01 (16 December 2003); Vojnity v Hungary, A 29617/07 (12 February 2013) (concerning the total removal of a father’s access rights on the grounds that his religious convictions had been detrimental to his son’s upbringing). 49 See Doğan and Others (n 37). 50  Within art 14, the issue will turn on whether the ECtHR considers the differences in the treatment of different religions as having a reasonable and objective justification. See Manzanas Martin v Spain, A 17966/10 (3 April 2012) (difference in treatment between priests of the Catholic Church and Evangelical ministers regarding the calculation of their pension rights); O’Donoghue v UK, A 34848/07 (14 December 2010) (differential regime for those wishing to marry in the Church of England); O Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the ECHR’ (2014) 14 Human Rights Law Reports 647. 51  cf Henrard (n 21). 52  Bayatyan v Armenia [GC], A 23459/03 [122], ECHR 2011 (conscientious objection to military service); K Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge, Cambridge University Press, 2015); Legg (n 1) 103–44; P Paczolay, ‘Consensus and Discretion: Evolution or Erosion of Human Rights Protection?’ in Dialogue Between Judges (Strasbourg, ECtHR, 2008), available at www.echr.coe.int/Documents/Dialogue_2008_ENG.pdf,. 53  SH v Austria [GC], A 57813/00 (3 November 2011) [96].

Religious Rights and the Margin of Appreciation 153 v Germany54 to the Grand Chamber’s judgment in Bayatyan v Armenia,55 the facts of which date back to 2003. In Bayatyan, the ECtHR considered that at the time of B’s case, the overwhelming majority of Council of Europe Member States had already recognised in law and practice the right to conscientious objection. Subsequently, Armenia also recognised that right. The laws of the Member States— along with the relevant international agreements—had therefore evolved so that, at the relevant time, there was already a virtual consensus on the question in Europe and beyond. In other cases, the ECtHR has been satisfied with ‘clear and uncontested evidence’ of a ‘continuing international trend’56 or continuing international movement towards legal recognition’.57 Generally the working assumption of the ECtHR has been that human rights standards incrementally and progressively increase,58 and so the MoA only tends to narrow over time. Thus, consensus is normally relied upon to expand the scope of rights and restrict the scope of limitations. However, legal and social experimentation is possible within limits. It is clear that it is open to states to impose new restrictions on rights and these may fall within the MoA even if other states have not imposed them.59 A striking illustration is the ban on the wearing in public places of clothing that is designed to conceal the face (the so-called Burqa-ban).60 Of the 47 Member States of the Council of Europe, only France and Belgium had actually imposed such bans. Nonetheless, in SAS v France61 in 2014, the ECtHR considered that there was no European consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places.62 It held that having regard in particular to the breadth of the MoA accorded to France, the ban could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’.63 A detailed analysis of the ECtHR’s practice with respect 54 

Grandrath v Germany A 9532/81 (1986). Bayatyan v Armenia [GC] A 23459/03 (7 July 2011). 56  See R Sandland, ‘Crossing and Not Crossing: Gender, Sexuality and Melancholy in the European Court of Human Rights’ (2003) 11 Feminist Legal Studies 191. 57  Oliari and Others v Italy, A 18766/11 and 36030/11 (21 July 2015). The three concurring judges found a violation on the basis of different, narrower reasoning that was not related to consensus or international trends. 58 See Demir and Baykara v Turkey, A 34503/97 (12 November 2008) [146]. 59 See P Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 HRLJ 4 (on social experimentation). 60  See A Ferrari and S Pastorellivi (eds), The Burqa Affair across Europe (Farnham, Ashgate 2013); E Brems (ed), The Experiences of Face Veil Wearers in European and the Law (Cambridge, Cambridge University Press, 2014). 61  SAS v France [GC] A 43835/11 (1 July 2014) [106]–[159]. cf the approach in Ahmet Arslan v Turkey, A 41135/98 (23 February 2010), in which the prohibition of a peaceful religious event in the streets was held to amount to a disproportionate interference with religious freedoms. 62  SAS v France (n 61) [156]. 63  ibid [157]. Importantly, though, the ECtHR rejected a number of other justifications offered by France related to gender equality and human dignity (ibid [118]–[120]). See J Marshall, ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ (2015) 15 Human Rights Law Reports 377; Freedom of Religion and Living Together (n 6); I Trispiotis, ‘Two Interpretations of “Living Together” in European Human Rights Law’ (2016) 75 Cambridge Law Journal 580. 55 

154  Dominic McGoldrick to a consensus published in 2013 concluded that ‘consensus analysis is a sound and constructive idea’.64 However, even when judges accept the concept of looking for a consensus in determining the MoA, there have been cases where have been significant and often very critical dissents on how it should be assessed.65

B.  Critiques of the Application of the MoA in Religious Rights Cases A particular criticism relates to the framing or formulation of the issue or question relating to religious rights to which consensus does or does not attach. The answer can vary depending on the formulation. In Şahin v Turkey,66 the narrow factual issue was the regulation of religious clothing in a university. There was no uniform European conception of the significance of religion in society or the wearing of religious symbols in educational institutions, but there was a virtual consensus on whether adult women in universities could wear religious clothing. Alongside Turkey, only two other European states prohibited the wearing of religious clothing in universities. The ECtHR chose the first formulation of the consensus issue. The different outcomes of the Chamber and the Grand Chamber in Lautsi v Italy concerning the display of crucifixes in classrooms can also be explained by how the issue was framed.67 In Murphy v Ireland, the ECtHR unanimously held that there was no clear consensus between the contracting states as to the manner in which to legislate for the broadcasting of religious advertisements and no ‘uniform conception of the requirements of the protection of the rights of others’ in the context of the legislative regulation of the broadcasting of religious advertising.68

C.  The Wide MoA and the ‘Fair Balance’ in Religion Cases It is notable that the MoA has been invoked in many of the leading and most controversial cases concerning concerned religious rights either in terms of their direct limitation, as in Şahin v Turkey, or because of their putative effect in ­limiting

64  See L Wildhaber et al, ‘No Consensus on Consensus? The Practice of the European Court of Human Rights’ 33 (2013) Human Rights Law Journal 248, 262. Similarly, see J Kratochvíl, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) Netherlands Quarterly of Human Rights 324, 357. For the argument that consensus fails to provide epistemic justification for the belief that human rights are universal see E-J K Kim, ‘Justifying Human Rights: Does Consensus Matter? (2012) 13 Human Rights Rev 261. 65 See Folgero v Norway [GC], A 15472/02 (29 June 2007). 66  Şahin v Turkey [GC], A 30943/96 (11 October 2001). 67  Lautsi v Italy, A 30814/06 (18 March 2011). See D McGoldrick, ‘Religion in the European Public Square and in European Public Life—Crucifixes in the Classroom’ (2011) 11(3) Human Rights Law Reports 451; G Itzcovich, ‘One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case’ (2013) 13 Human Rights Law Reports 287; M Lugato, ‘The “Margin of Appreciation” and Freedom of Religion: Between Treaty Interpretation and Subsidiarity’ (2013) 52 Catholic Legal Studies 49. 68  ibid [67], [81]. The prohibition related only to advertising in the audio-visual media.

Religious Rights and the Margin of Appreciation 155 or being limited by other rights, as in Otto-Preminger v Austria,69 Wingrove v UK,70 Murphy v Ireland,71 Lautsi v Italy,72 Eweida v UK73 and SAS v France.74 The latter is the context in which the MoA is most commonly and visibly applied.75 It has assumed even more significance as the ECtHR, through its case law, has expanded the scope of ECHR rights through its interpretation of the ECHR as a ‘living instrument’, and thereby developed the scope of procedural and positive obligations.76 Thus, in Karaahmed v Bulgaria,77 there was a failure to take adequate steps to prevent or investigate the disruption of Muslim prayers by offensive and violent demonstrators. What is notable is that in many cases concerning religious rights, the ECtHR not only affords states a MoA, but a ‘wide’ one at that. The scope of the MoA afforded directly relates to the strictness of review. Broadly speaking, the wider the margin, the less strict the scrutiny78 and vice versa.79 As noted, the basis for affording a wide MoA is the wide variety of constitutional models governing relations between states and religious denominations in Europe.80 Thus, in Sindicatul ‘Pastorul cel Bun’ v Romania, the ECtHR, after referring to the lack of a European consensus on such relations,81 considered that the state enjoyed a wider MoA in this sphere. This encompassed the right to decide whether or not to recognise trade unions that operated within religious communities and pursued aims that 69  Otto-Preminger v Austria (n 12) [46]–[50]. Giniewski v France, A 64016/00, (3 January 2006) [52] and Aydin Tatlav v Turkey, A 50692/99 (2 May 2006) [27]–[28] distinguished between publications which were gratuitiously offensive, as in Otto-Preminger, and those which were not inherently offensive. 70  Wingrove v UK, A 17419/90 (25 November 1996). See the debate between P Mahoney, ‘Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech’ [1997] European Human Rights Law Reports 364 and A Lester, ‘Universality versus Subsidiarity: A Reply’ [1998] European Human Rights Law Reports 73. 71  See A Geddis, ‘You Can’t Say “God” on the Radio: Freedom of Expression, Religious Advertising and the Broadcast Media after Murphy v Ireland’ (2004) 9 European Human Rights Law Reports 181. 72  See P Ronchi, ‘Crucifixes, Margin of Appreciation and Consensus’ (2011) 13 Ecclesiastical Law Journal 287; Special Issue of (2011) 6 Religion and Human Rights 203 ff; Temperman (n 32); McGoldrick (n 67); L Zucca, ‘Lautsi: A Commentary’ (2013) 11 International Journal of Constitutional Law 218. 73  Eweida and Others v UK, A 48420 (1 January 2013). See I Leigh and A Hambler, ‘Religious Symbols, Conscience, and the Rights of Others’ (2014) 3 Oxford Journal of Law and Religion 2. 74  See M Hunter-Henin, ‘Living Together in an Age of Religious Diversity’ (2015) 4 Oxford Journal of Law and Religion 1; G Elliot-Williams, ‘Protection of the Right to Manifest Religion or Belief under the ECHR in SAS v France’ (2016) Oxford Journal of Law and Religion 344. 75  See Kratochvíl (n 64); O Bakircioglue, ‘The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases’ (2007) 8 German Law Journal 711. 76  See E Brems and J Gerards (eds), Shaping Rights in the ECHR: The Role of the ECtHR in Determining the Scope of Human Rights (Cambridge, Cambridge University Press, 2013). 77  Karaahmed v Bulgaria, A 30587/13 (24 February 2015). See also Osmanoǧlu and Kocabaş v Switzerland, A. 29086/12 (10 January 2017) (‘considerable’ MoA concerning requirement of ­compulsory education). 78 See Obukhova v Russia, A 34737/03 (8 January 2009). 79  However, this is only a generalisation or starting point; see Alajos Kiss v Hungary, A 38832/06 (20 May 2010). 80  See I Leigh and R Adhar, ‘Post-secularism and the European Court of Human Rights: Or How God Never Really Went Away’ (2012) 75 Modern Law Review 1064. 81  ibid [61].

156  Dominic McGoldrick might hinder the exercise of such communities’ autonomy.82 However, six judges dissented, partly on the basis that although constitutional models governing relations between the different European states and religious denominations varied greatly, none of them excluded members of the clergy from the right to form trade unions.83 In assessing whether there exists a pressing social need for the measure in question and, in particular, whether the interference was proportionate84 to the legitimate aim pursued, regard should be had to the ‘fair balance’ which has to be struck between the relevant competing interests and in respect of which the state enjoys a MoA.85 The breadth of the MoA to be accorded to the state can be crucial to the ECtHR’s conclusion as to whether the challenged provision struck a fair balance.86 In delimiting the extent of the MoA, the ECtHR has regard to what is at stake therein.87 Where a particularly important facet of an individual’s existence or identity is at stake, the MoA allowed to the state will normally be restricted.88 It might be thought that the external manifestation of one’s religious beliefs were such an important facet of an individual’s existence or identity. However, the ECtHR has not given such a manifestation the additional weight it might bear if it were considered as an aspect of identity within Article 8.89 If the process was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism.90 Significance is also attached to whether the measure deprived the alleged victim of the core contents of a Convention right. Thus, in Sindicatul ‘Pastorul cel Bun’ v Romania, the applicant union’s members could form a trade union that pursued aims compatible with the Church’s Statute and did not call into question the Church’s traditional hierarchical structure and decision-making procedures. The applicant union’s members were are also free to join any of the associations currently existing within the Romanian Orthodox Church which had been authorised by the national courts and operated in accordance with the requirements of the Church’s Statute.91 82 

ibid [168]–[171]. ibid, Joint Partly Dissenting Opinion of Judges Spielmann, Villiger, López Guerra, Bianku, Møse and Jäderblom, at [10]. 84 See Süveges v Hungary, A 50255/12 (5 January 2016) (restriction on S’s religious conduct—his being unable to attend mass—was proportionate to the legitimate aim pursued by his house arrest). Spielmann (n 1, updated version) observed that ‘the proportionality principle constitutes the strongest bulwark against the over-use of the margin of appreciation doctrine’ (at 22). 85 See J Christofferson, Fair Balance: Proportionality, Subsidiarity and Primarity in the ECHR (Oxford, Oxford University Press, 2009). 86  A, B and C v Ireland [GC], A 25579/05 [231] (concerning access to abortion). 87  Şahin v Turkey (n 66) [110] (concerning the wearing of Islamic headscarves in educational institutions). 88  Evans v UK [GC], A 6339/05 (2008) 46 EHRR 34 [77] (concerning an ex-partner’s consent for the use of frozen embryos). 89  See Marshall (n 63). 90  Sahin v Germany (n 66) [46] ff. 91  ibid [170]. In the view of the six dissenting judges, the national court did not take into account the competing interests and did not perform a balancing exercise to assess the proportionality of the adopted measure in relation to the applicant union’s rights (at [5]). 83 

Religious Rights and the Margin of Appreciation 157 In terms of whether the MoA applies and its width, it will be significant if the relevant law or policy is considered to reflect the ‘profound moral views of the people of the state’92 or ‘concerns a question about the requirements of morals’.93 There will usually be a wide MoA if the state is required to strike a balance between competing private and public interests or competing rights and interests that are protected under the ECHR. Many religious rights cases are of this type. Again, much turns on how the ECtHR frames or conceptualises the issues. The more abstract the framing, the wider the MoA and vice versa. In Eweida and Others v UK,94 the ECtHR only found a violation in one of the cases (Eweida), in which it framed the issue as a balance between an individual’s right to manifest their religion and the employer’s wish to project a certain corporate image.95 This framing made it more likely that the ECHR right would weigh more heavily in the balance and result in a violation, which it did. In the other cases, it found no violation where the balancing interest was the protection of the health and safety of nurses and patients (Chaplin),96 providing a public service which was effective in terms of practicality and efficiency and which complied with the overarching policy of not discriminating on the grounds of sexual orientation (Ladele),97 and action by a private employer which was intended to secure the implementation of its policy of providing a service without discrimination (McFarlane).98 The framings in the latter three cases made the likelihood of a finding of non-violation much greater and, indeed, that was the result in each case. Where ECHR rights deserve equal respect, the MoA should in principle be the same irrespective of which party brings the proceedings.99 In some cases it could be argued that the ECtHR has to readily accept the interests being balanced against religious rights. In Phull v France,100 a claim that the obligation to remove turban at security check at airport violated Article 9 was manifestly ill-founded on the basis that ‘security checks in airports are undoubtedly necessary in the interests of public safety’ and the ‘arrangements for implementing them … fell within the [state’s] margin of appreciation, particularly as the measure was resorted to only occasionally’. It can reasonably be argued that the ECtHR could have found that an individual’s treatment was outside an 92  A, B and C v Ireland (n 86) [241]. For criticism of the deference to internal moral views, see the partly dissenting opinion of six judges (n 86); S Krishnan, ‘What’s the Consensus: The Grand Chamber’s Decision on Abortion in A, B and C v Ireland’ (2010) European Human Rights Law Reports 200. 93  Stübing v Germany, A 43547/08 (12 April 2012) [61]. 94  Eweida and Others v UK (n 73) [109] (wearing of religious symbols by employees). See R MCrea, ‘Religion in the Workplace: Eweida and Others v UK’ (2013) 77 Modern Law Review 277; J Maher, ‘Eweida and Others: A New Era for Article 9?’ (2014) 63 International & Comparative Law Quarterly 213. 95  Eweida and Others (n 98) [94]–[95]. Cf ECJ, Case C-157/15, Samira Achbita (14 March 2017). 96  ibid [98]–[100]. 97  ibid [102]–[106]. 98  ibid [107]–[110]. 99  Axel Springer AG v Germany, A 39954/08 (7 February 2012) [87] (discussing arts 8 and 10 ECHR). 100  Phull v France, A 35753/03 (11 January 2005), followed in El Mosrli v France, A 15585/06 (4 March 2008) (Muslim woman refused to remove her veil in a French consulate during an identity check).

158  Dominic McGoldrick acceptable MoA because the state could have applied a less restrictive alternative— as in Phull—via a walk-through scanner or hand-held detector.101 The meaning or impact of the public expression of a religious belief will differ according to time and context.102 As noted, there is no uniform European conception of the requirements of ‘the protection of the rights of others’ in relation to attacks on their religious convictions.103 What is likely to cause substantial offence to persons of a particular religious persuasion will vary significantly from time to time and from place to place, especially in an era characterised by an ever-growing array of faiths and denominations. Country-specific religious sensitivities can provide relevant and sufficient reasons justifying interference with an individual’s freedom of expression under Article 10.104 There is a wider MoA to impose restrictions on religious advertising than on commercial expression.105 However, if the ECtHR considers that the particular expression concerns a matter of public interest, then a reduced MoA applies.106 Finally, an element to which the ECtHR increasingly directs its attention is whether the national decision-making process, seen as a whole, provides for the requisite protection by weighing up the interests at stake in detail and in depth.107

VI.  CASE STUDY: FERNANDEZ MARTINEZ V SPAIN

In June 2014, in Fernandez Martinez v Spain, the Grand Chamber held that a decision not to renew the contract of a priest, who was married with five children, to teach Catholic religion and morals, following the publication of an article disclosing his membership of the ‘Movement for Optional Celibacy’, did not violate his right to private life under Article 8. As a case study, it illustrates many of the key arguments in this chapter: first, the complex and sophisticated manner in which the ECtHR uses the MoA as an instrument of supervision; second, that it is the issue of framing that is crucial to the application of the identification or otherwise of consensus; thirdly, the importance in the application of the MoA of the national domestic processes of reasoning, contestation and evaluation; fourth, the use of 101  See SO Chaib, ‘Suku Phull v France Rewritten from a Procedural Justice Perspective: Taking ­ eligious Minorities Seriously’ in Brems (n 19) 218–40. It is also striking that some decisions by the R Human Rights Committee under the International Covenant on Civil and Political Rights (1966), which asserts that it does not afford states a MoA, have found violations in cases where, on essentially the same facts, the ECtHR has found cases manifestly inadmissible. See Ranjit Singh v France, Cmn No 1876/2000; Mann Singh v France, Cmn No 1928/2010; and Bikramjit Singh v France, Cmn No 1852/2008 (all concerning the wearing of turbans by Sikhs, discussed in McGoldrick (n 1)). 102 See Dahlab v Switzerland (inadmissible), A 42393/98, ECHR 2001‑V. 103 ibid. 104  ibid [71]–[82]. 105  ibid [70]. 106  Murphy v Ireland (n 13) [67]. 107 See ibid; Fernandez-Martinez v Spain (n 26) [123]–[153]; Sindicatul (n 27); M Saul, ‘The ­European Court of Human Rights’s Margin of Appreciation and the Processes of National Parliaments’ (2015) 15(4) Human Rights Law Reports 745.

Religious Rights and the Margin of Appreciation 159 the MoA in the inevitable balancing of Convention rights. The ECtHR’s shift from simply respecting the autonomy of religious organisations to a less protective one which required a detailed consideration of the balancing of interests in individual cases has been a subtle one;108 fifth, that even where the ECtHR is clear that it is an area where states have a MoA, reasonable judges may disagree on whether a fair balance has been struck in an individual case. Fernández Martínez (FM) became a Catholic priest in 1961. In 1984 he applied to the Vatican for dispensation from celibacy. He did not receive a reply until 1997. In 1985 he had married in a civil ceremony and he and his wife had five children. Between 1991 and 1997, he had taught Catholic religion and ethics in a state high school in the Murcia region under an annually renewable contract. He was employed and remunerated by the state. However, according to a 1979 Agreement between the Spanish state and the Holy See, the renewal of the contracts for teachers of Catholic religion in public schools was subject to the approval of the local bishop. Between 1991 and 1997, that approval was forthcoming notwithstanding FM’s marital status and despite him not having received the required dispensation from the Vatican. In November 1996, the Murcia newspaper La ­Verdad published an article about the ‘Movement for Optional Celibacy’ of priests (MOCEOP), of which FM was an active member. It included comments by a number of participants indicating their disagreement with the Church’s position on abortion, divorce, sexuality and contraception. FM was named in the article and it was illustrated by a picture of FM with his family. On 15 September 1997, FM was granted dispensation from celibacy by the Vatican in a rescript, which also released him from the rights and duties associated with his former clerical status. The rescript further indicated that he could no longer teach religion in public institutions, unless the local bishop decided otherwise, ‘according to his own prudent judgment and provided that there [was] no scandal’. On 29 September 1997, the Bishop of Cartagena informed the Ministry of Education that he was not renewing FM’s contract since ‘[FM’s] situation [had become] a matter of public and common knowledge’, thus creating a ‘scandal’. FM challenged the decision in the domestic employment tribunal and courts. Ultimately, FM’s amparo appeal with the Constitutional Court was dismissed. The Constitutional Court emphasised the constitutionality of the system of selecting and recruiting teachers of Catholic religion in state schools and pointed out that religious education teachers in Spain had a special status which justified taking into account their religious beliefs when they were chosen. It noted that the reason for the non-renewal decision had been a newspaper article which had given rise to a ‘scandal’—according to the arguments of the Diocese—because it had made public two personal characteristics of FM already known to the Diocese: his family 108  See I Leigh, ‘New Trends in Religious Liberty and the European Court of Human Rights’ (2010) 12 Ecclesiastical Law Journal 266; C Evans and A Hood, ‘Religious Autonomy and Labour Law: A Comparison of the Jurisprudence of the US and the European Court of Human Rights’ (2012) 1 Oxford Journal of Law and Religion 91; JD van den Vyver, ‘State Interference in the Internal Affairs of Religious Institutions’ (2012) 26 Emory International Law Review 1; Fernandez-Martinez v Spain (n 26).

160  Dominic McGoldrick situation as a priest who was married and had several children; and his membership of the MOCEOP, which challenged certain precepts of the Catholic Church. This publicity constituted the factual basis for what the Bishop regarded as the ‘scandal’. FM submitted that the non-renewal of his contract of employment was a ­violation of his right to respect for private and family life under Article 8 ECHR. In 2012, a Chamber of the Court, by six votes to one, held that there had been no violation of Article 8. FM’s request that the case be referred to the Grand Chamber was accepted. By nine votes to eight, the Grand Chamber held that there had been no violation of Article 8. Although the ECtHR held that the application should be examined under Article 8, there was extensive consideration of FM’s Article 9 right to freedom of thought and religion, and the Church’s right to autonomy. Agreeing with the parties, the Grand Chamber found that the non-renewal decision pursued the legitimate aim of protecting the rights and freedoms of others, namely those of the Catholic Church, and in particular its autonomy in respect of the choice of persons accredited to teach religious doctrine.109 The central focus was on whether the limitation on FM’s Article 8 rights was necessary in a democratic society. The Grand Chamber framed the case as one in which it had to weigh up the interests at stake so as to rule on a conflict between two rights that were equally protected by the ECHR. This balancing exercise concerned FM’s right to his private and family life, on the one hand, and the right of religious organisations to autonomy, on the other. The state was called upon to guarantee both rights and, if the protection of one led to an interference with the other, to choose adequate means to make this interference proportionate to the aim pursued. In this context, the state had a wide MoA.110 The Grand Chamber observed that religious communities traditionally and universally existed in the form of organised structures. Where the organisation of the religious community was at issue, Article 9 must be interpreted in the light of Article 11, which safeguarded associative life against unjustified state interference. Seen from that perspective, the right of believers to freedom of religion encompassed the expectation that they would be allowed to associate freely, without arbitrary state intervention. The autonomous existence of religious communities was indispensable for pluralism in a democratic society and was thus an issue at the very heart of the protection which Article 9 afforded. It had a direct interest not only for the actual organisation of those communities, but also for the effective enjoyment by all their active members of the right to freedom of religion. If the organisational life of the community was not protected by Article 9, all other aspects of the individual’s freedom of religion would become vulnerable.111 109  See M Kiviorg, ‘Collective Religious Autonomy versus Individual Rights: A Challenge for the ECtHR?’ (2014) 39 Review of Central and Eastern European Law 315. Fernandez-Martinez (n 26) [122]. 110  ibid [123]. 111  ibid [127].

Religious Rights and the Margin of Appreciation 161 Concerning the internal autonomy of religious groups, Article 9 did not enshrine a right of dissent within a religious community. In the event of any doctrinal or organisational disagreement between a religious community and one of its members, the individual’s freedom of religion was exercised by the option of freely leaving the community.112 In that context, the Court re-emphasised the state’s role as the neutral and impartial organiser of the exercise of various religions, faiths and beliefs, and its view that this role was conducive to public order, religious harmony and tolerance in a democratic society, particularly between opposing groups. Respect for the autonomy of religious communities recognised by the state implied, in particular, that the state should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It was therefore not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that existed or might emerge within them.113 Apart from very exceptional cases, the right to freedom of religion under the Convention excluded any discretion on the part of the state to determine whether religious beliefs or the means used to express such beliefs were legitimate. Moreover, the principle of religious autonomy prevented the state from obliging a religious community to admit or exclude an individual or to entrust someone with a particular religious duty.114 Where questions concerning the relationship between the state and religions, on which opinion in a democratic society may reasonably differ widely, were at stake, the role of the national decision-making body must be given special importance. That would be the case in particular where practice in European states was characterised by a wide variety of constitutional models governing relations between the state and religious denominations.115 As a consequence of their autonomy religious, communities could demand a certain degree of loyalty from those working for them or representing them. In this context, the nature of the post occupied by those persons was an important element to be taken into account when assessing the proportionality of a restrictive measure taken by the state or the religious organisation concerned. In particular, the specific mission assigned to the person concerned in a religious organisation was a relevant consideration in determining whether that person should be s­ ubject

112  This point on dissent is interesting because in Eweida and Others (n 73), the ECtHR moves its jurisprudence more firmly into the necessity for balancing and away from notions of non-interference; see M Pearson, ‘Article 9 at a Crossroads: Interference before and after Eweida’ (2013) 13 Human Rights Law Reports 580. Of course, a less strict application of the non-interference doctrine will necessarily mean that more issues will turn on the scope of the MoA afforded in relation to the particular religious issue. In some judgments, the ECtHR has used both grounds; see Cha’are Shalom ve Tsedek v France (27 June 2000); C Zoethout, ‘Ritual Slaughter and the Freedom of Religion: Some Reflections on a Stunning Matter’ (2013) 35 Human Rights Quarterly 651. 113  Fernández Martínez (n 26) 128. 114  ibid [129], citing Svyato-Mykhaylivska Parafiya v Ukraine, A 77703/01 (14 June 2007) [146]. 115  ibid [130], citing Şahin v Turkey (n 19) and Sindicatul (n 27).

162  Dominic McGoldrick to a heightened duty of loyalty.116 A mere allegation by a religious community that there was an actual or potential threat to its autonomy was not sufficient to render any interference with its members’ rights to respect for their private or family life compatible with Article 8. In addition, the religious community in question must also show, in the light of the circumstances of the individual case, that the risk alleged was probable and substantial, and that the impugned interference with the right to respect for private life did not go beyond what was necessary to eliminate that risk and did not serve any other purpose unrelated to the exercise of the religious community’s autonomy. Nor should it affect the substance of the right to private and family life. The national courts must ensure that these conditions were satisfied by conducting an in-depth examination of the circumstances of the case and a thorough balancing exercise between the competing interests at stake.117 By signing his successive employment contracts, FM knowingly and voluntarily accepted a heightened duty of loyalty towards the Catholic Church, which limited the scope of his right to respect for his private and family life to a certain degree. Such contractual limitations were permissible under the Convention where they are freely accepted. From the point of view of the Church’s interest in upholding the coherence of its precepts, teaching Catholic religion to adolescents could be considered a crucial function requiring special allegiance. The Court was not convinced that at the time of the publication of the article in La Verdad, this contractual duty of loyalty had ceased to exist. Even if FM’s status as a ‘married priest’ was unclear, a duty of loyalty could still be expected on the basis that the Bishop had accepted him as a suitable representative to teach Catholic religion.118 In choosing to accept a publication about his family circumstances and his association with what the Bishop considered to be a protest-oriented meeting, FM severed the special bond of trust that was necessary for the fulfilment of the tasks entrusted to him. It was not unreasonable for a church or religious community to expect the particular loyalty of religious education teachers insofar as they may be regarded as its representatives. The existence of a discrepancy between the ideas that had to be taught and the teacher’s personal beliefs might raise an issue of credibility if the teacher actively and publicly campaigned against the ideas in question. In this case, the problem lay in the fact that FM could be understood to have been campaigning in favour of his way of life to bring about a change in the Church’s rules and in his open criticism of those rules.119 For the Grand Chamber, it was necessary to take into account the specific content of FM’s teaching. As a teacher of religious education, a heightened duty of loyalty was justified by the fact that, in order to remain credible, religion must be taught by a person whose way of life and public statements are not flagrantly at odds with the religion in question, especially 116 ibid [131], citing, inter alia, Obst v Germany, A 425/03 (23 September 2010) and Schüth v Germany, A 1620/03 (23 September 2010). 117  ibid [132], citing Sindicatul (n 27). 118  ibid [134]. 119  ibid [136]–[137].

Religious Rights and the Margin of Appreciation 163 where the religion was supposed to govern the private life and personal beliefs of its followers. In assessing the seriousness of the conduct of an individual employed by the Church, it was necessary to take into account the proximity between the person’s activity and the Church’s proclamatory mission. In the present case, that proximity was clearly very close. FM was voluntarily part of the circle of individuals who were bound, for reasons of credibility, by a duty of loyalty towards the Catholic Church, thus limiting his right to respect for his private life to a certain degree. The fact of being seen as campaigning publicly in movements opposed to Catholic doctrine clearly ran counter to that duty. In addition, there was little doubt that FM, as a former priest and director of a seminary, was or must have been aware of the substance and significance of that duty. In addition, the changes brought about by the publicity given to FM’s membership of the MOCEOP and by the remarks appearing in the newspaper article were all the more important as FM had been teaching adolescents, who were not mature enough to make a distinction between information that was part of the Catholic Church’s doctrine and that which corresponded to FM’s own personal opinion.120 That FM, like all religious education teachers in Spain, was employed and remunerated by the state was not such as to affect the extent of the duty of loyalty imposed on FM vis-à-vis the Catholic Church or the measures that the latter was entitled to adopt if that duty was breached.121 The non-renewal of FM’s contract of employment constituted a sanction entailing serious consequences for his private and family life. However, the Bishop had taken those difficulties into account, pointing out that FM would be entitled to unemployment benefit, which in the event he did receive.122 The consequences for FM had to be seen in the light of the fact that he had knowingly placed himself in a situation that was incompatible with the Church’s precepts. FM was aware of its rules, knew that his conduct placed him in a situation of precariousness vis-à-vis the Bishop and made the renewal of his contract dependent upon the latter’s discretion. He should therefore have expected that the voluntary publicity of his membership of the MOCEOP would not be devoid of consequences for his contract. Although FM had not received any prior warning before the decision not to renew his contract, he knew that his contract was subject to annual renewal if approved by the Bishop, thus involving the possibility for the latter to assess, on a regular basis, FM’s fulfilment of his heightened duty of loyalty. FM also knew that the Church had already shown tolerance in allowing him to teach Catholic religion for six years, that is, for as long as his personal situation which was incompatible with the precepts of that religion was not promoted publicly. Moreover, a less restrictive measure for FM would certainly not have had the same effectiveness in terms of preserving the credibility of the Church. Thus, it did not appear that the consequences of the decision not to renew his contract were excessive in the circumstances of the case, having regard 120 

ibid [138]–[142]. ibid [143]. 122  ibid [145]. 121 

164  Dominic McGoldrick in particular to the fact that FM had knowingly placed himself in a situation that was completely in opposition to the Church’s precepts.123 The Grand Chamber specifically directed its attention to the detailed review of the case by the successive domestic courts.124 It asserted that although ­Article 8 contained no explicit procedural requirements, it could not satisfactorily assess whether the reasons adduced by national authorities to justify their decisions were ‘sufficient’ for the purposes of Article 8(2) without at the same time determining whether the decision-making process, seen as a whole, provided FM with the requisite protection of his interests. The domestic courts had taken into account all the relevant factors and had weighed up the interests at stake in detail and in depth, within the limits imposed on them by the necessary respect for the autonomy of the Catholic Church. The conclusions thus reached did not appear unreasonable, particularly in the light of the fact that FM, as he had been a priest and the director of a seminary, was or must have been aware, in accepting the task of teaching Catholic religion, of the potential consequences of the heightened duty of loyalty vis-a-vis the Catholic Church by which he thus became bound, for the purpose, in particular, of preserving the credibility of his teaching. As for the Church’s autonomy, it did not appear, in the light of the review exercised by the national courts, that it was improperly invoked in the present case. The Bishop’s decision not to propose the renewal of FM’s contract could not be said to have contained insufficient reasoning, to have been arbitrary or to have been taken for a purpose that was unrelated to the exercise of the Catholic Church’s autonomy.125 In conclusion, the Grand Chamber held that, having regard to the state’s MoA in the present case, the interference with FM’s right to respect for his private life was not disproportionate. Accordingly, there has been no violation of Article 8. Having regard to its conclusion under Article 8, the Grand Chamber found that there was no need to examine the other complaints separately (these complaints included both Articles 9 and 14).126 The majority and minority accepted that the domestic authorities had a wide MoA and applied what they considered to be the same test of proportionality, but they came to radically different conclusions. The finding of no violation was by nine votes to eight. The minority, including the President of the ECtHR, ­vehemently disagreed with virtually all aspects of the majority ruling.127 First, the dissenters distinguished the religious decision of the Diocese, that is, the refusal to grant permission for the renewal of FM’s contract, from the secular consequences attached to that decision by the national authorities. The dissenters thus drew on the distinction between FM’s religious position (a ‘suspended cleric’) and his 123 

ibid [146]. ibid [147]–[151]. 125 ibid. 126  ibid [152]–[155]; see also Sodan v Turkey, A 18650/05 (2 February 2016) (transfer of a civil servant to another city because his wife wore an Islamic veil violated art 8 ECHR). 127  There was a joint dissent by all eight judges, a dissent by three judges and two individual dissenting opinions. 124 

Religious Rights and the Margin of Appreciation 165 s­ ecular position (a teacher in a public school). The purported distinction seems rather unreal. It would effectively make the courts the arbiters of whether M had been involved in scandal.128 Second, the non-renewal decision ‘was taken without any prior warning and without any opportunity for the applicant to be heard’. Third, the dissenters noted that the reasons for FM’s ‘dismissal’, that is, the fact that he had created a ‘scandal’, had: (i) only been indicated in a rescript that was drawn up after the publication of the newspaper article; (ii) had already been publicly known to the Church, the school and the parents of the pupils long before the publication of the article; and (iii) were outside of FM’s control, as it had not been he himself who had published his marital status and membership of the MOCEOP, but a journalist. Fourth and finally, the dissenters criticised the Ministry for not having considered less restrictive alternatives. However, they gave no indication of what those alternatives could have been. Such close votes in the Grand Chamber are relatively rare and do not do much for the integrity and legitimacy of the ECtHR’s jurisprudence.129 Although the Grand Chamber gave significant weight to the autonomy of the Church, it is noticeable that it was not prepared to accept that a mere allegation by a religious community that there was an actual or potential threat to its autonomy was sufficient. There had to be a thorough balancing exercise between the competing interests at stake and it had to have been conducted by the national authorities.130 What was ultimately critical for the majority was that they viewed FM as campaigning publicly in movements opposed to Catholic doctrine. For them, this clearly ran counter to his duty of loyalty towards the Catholic Church. The best case to explain the eight dissenters is the one they themselves gave. They simply saw the same case differently in relation to the establishment of the facts, the characterisation of the facts in the light of Article 8, and the application of Article 8 to the facts of the case.131 Lawyers may appreciate the fine art involved in alternative perceptions and legal categorisations of the same facts and in assessing what is a fair balance. But the real concern is that secular courts are claiming the prerogative to undermine religious autonomy by making secular determinations on the status of persons as employees, priest or ministers,132 and on how religious organisations 128  See also the dissenting opinion of Judge Sajò at [5]: ‘The “scandal” was not convincingly translated to meet the requisite judicial standards. Or better put, it was accepted that it was above and beyond the need for such translation.’ 129  The same observation can be made in relation to the 9:8 decision in Animal Defenders International v UK [GC], A 48876/08 (22 April 2013). The majority and the minority also differed in their assessment of whether there was a European consensus. 130  Following the ECtHR’s balancing approach in relation to lay persons in Obst v Germany (n 116), Schüth v Germany (n 121) and Siebenhaar v Germany, A 18136/02 (3 February 2011). In Schüth, the ECtHR found a violation of art 8, primarily because the German courts had not engaged in a real balancing exercise between the Convention rights of the Church and those of the individual applicant. See McGoldrick (n 8); I Leigh, ‘Balancing Religious Autonomy and Other Human Rights under the European Convention’ (2012) 1 Oxford Journal of Law and Religion 109. 131 See Fernández Martínez (n 26), Joint Dissenting Opinion of the eight judges at [1]. 132  See P Slotte and H Årsheim, (eds), Special Issue on Ministerial Exception (2015) 4(2) Oxford Journal of Law and Religion 171–302.

166  Dominic McGoldrick should deal, both substantively and procedurally, with members whose actions or activities are inconsistent with religious beliefs.133 Any degree of balancing of rights necessarily gives less protection to the interest of religious organisations than does a simple deference to their religious autonomy. The decisions of the national courts must be reasoned and reasonable. They must weigh up the interests at stake in detail and in depth, but—and this is crucial—they can do so within the limits imposed on them by the necessary respect for the autonomy of the particular religion in the context of their national constitutional system. The national court’s conclusions will be accepted by the ECtHR as long as they do not appear unreasonable on the facts. The national authorities have to ensure that the Church’s autonomy is not improperly invoked. This requires that the decision of the religious authorities must contain sufficient reasoning, not be arbitrary and not be taken for a purpose that was unrelated to the exercise of the religion’s autonomy. A contractual acceptance of obligations of loyalty will be given weight. So too will the religious beliefs of a person who wishes to engage in teaching the morals or ethics of a particular religion. This is to preserve the right to religious freedom in its collective dimension. The effect of the MoA is thus that the ECtHR’s role is necessarily more limited than it might be outside of the religious context. However, the ECtHR maintains its perception of the MoA as an instrument of supervision. The state must remain within its MoA and a ‘fair balance’ must be maintained between the various private interests.134 As noted, the majority and minority accepted that the domestic authorities had a wide MoA and applied what they considered to be the same test of proportionality. However, they came to radically different conclusions. If this happened consistently, it would ultimately cast doubt on the credibility of the MoA as a conceptual tool because of the resulting uncertainty in its application. Fortunately, such deep divisions are rare. In the vast majority of cases, the results of applying the MoA, even when it involves consideration of a complex multiplicity of factors and elements, and the balancing of equal rights, is a unanimous decision or a strong majority.135

VII.  CONCLUDING COMMENTS

It is submitted that when properly understood, the MoA is a complex, ­sophisticated and defensible intellectual instrument136 for international bodies 133 See S Smet, ‘Fernández Martínez v Spain: The Grand Chamber Putting the Brakes on the “Ministerial Exception” for Europe?’ Strasbourg Observers (23 June 2014), available at http:// strasbourgobservers.com/2014/06/23/fernandez-martinez-v-spain-the-grand-chamber-putting-thebreaks-on-the-ministerial-exception-for-europe. See also Baroness Hale, ‘Secular Judges and Christian Law’ (2015) 17 Ecclesiastical Law Journal 170. 134  Fernández Martínez (n 26) [114]. 135  As in Şahin v Turkey (n 19) and Lautsi (n 18). 136  See also Legg, n 1 above, who strongly supports the use of the MoA.

Religious Rights and the Margin of Appreciation 167 supervising polycentric rights claims, which is commonly the case in relation to religious rights.137 It is like a multi-dimensional chess game in which a lot of pieces are in play along a number of axes. In religious cases, as in others, the MoA factors may combine and interact in different ways, sometimes pulling in different directions in the context of a single case. This complexity and uncertainty may not satisfy jurisprudential purists or pure universalists, but it represents a sensible pragmatic legal doctrine for a system applying to 47 states and over 820 million people. The consequence of affording states a MoA in religionrelated cases is that an acceptable and human rights-compliant overall balance can be achieved in a number of ways. Thus conceived, the MoA plays a crucial role in building a complex multi-level community amongst the 47 Council of Europe Member States. The MoA can thus assist in mediating between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences and national or local cultural diversity.138 It is submitted that the MoA is a sufficiently sophisticated and flexible instrument of supervision. As noted, its application can be sensitive to special historical or political considerations, the relative importance of the interest at stake, sensitive moral or ethical issues, the balancing of private and public interests, and complex scientific and technical issues. Assessing all of these kinds of factors in religion-related cases cannot be avoided, so their explicit acknowledgement makes for more open and transparent reasoning. The MoA gives states ‘room for manoeuvre’,139 while retaining strong elements of European supervision. It is submitted that the complexity of factors taken account of in ECtHR’s methodology in applying the MoA, including the weight given to consensus, leads to reason-based, justificatory arguments.140 There is thus a process of reasoning, contestation and evaluation which is engaged in by democratic parliaments,141 courts and, to some extent, the people.142 Giving a significant but not necessarily determinative weight to the existence or non-existence of a consensus is a sensible and credible tool to ensure that the evolution of the ECtHR’s jurisprudence keeps pace with but does not move so far ahead of societal

137  See G Webber, ‘Proportionality, Balancing, and the Cult of Constitutional Rights Scholarship’ (2010) 23 Canadian Journal of Law and Jurisprudence 179. 138  See Legg (n 1) on ‘affording appropriate respect for local values in the states’ implementation of their international human rights obligations’ (at 225). 139  This expression is used the ECtHR’s Press Releases to describe the operation of the MoA; see Junta Rectora Del Ertzainen Nazional Elkartasuna v Spain, A 45892/09 (21 April 2015). 140  See also M Cohen-Eliya and I Porat, ‘Proportionality and the Culture of Justification’ (2011) 59 American Journal of Comparative Law 466; M Hunt et al, Parliaments and Human Rights (Oxford, Hart Publishing, 2015) 425–583. 141  See Saul (n 107). 142  See B Petkova, ‘The Notion of Consensus as a Route to Democratic Adjudication?’ (2011–12) 14 Cambridge Yearbook of European Legal Studies 663.

168  Dominic McGoldrick changes within Europe that it creates a significant risk of non-implementation.143 The MoA can thus be understood as a device that, in those situations in which it is appropriate to apply it,144 can mediate between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences and national or local cultural diversity.145

143  On the importance to implementing human rights standards of judicial will, domestic sensitivities, public support (or at least lack of opposition) and political organisation, see D Anagnostou (ed), The European Court of Human Rights: Implementing Strasbourg’s Judgments on Domestic Policy (Edinburgh, Edinburgh University Press, 2013). 144  It is important to re-emphasise that, as explained in section III above, the ECtHR’s religionrelated jurisprudence has been very strong in a number of critical respects, and in those areas there has been little if any scope for the MoA to be accorded. 145  See DL Donoho, ‘Autonomy, Self-Governance, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights’ (2001) 15 Emory International Law Review 391; McGoldrick (n 1); Henrard (n 21).

9 The Paradox of Human Rights and the Role of the European Court of Human Rights in Keeping it Alive PETR AGHA*

I.  PRELIMINARY REMARKS

P

OPULAR HUMAN RIGHTS discourse understands human rights mostly as limits to the action of the sovereign (typically the state), and as such human rights are perceived by many as gradually assuming the position from which they became the new sovereign, albeit that this time, human rights do not take into account national borders and local sentiments or country-specific value systems, which are generally seen as obstacles to achieving the realisation of universal human rights.1 Without a doubt, this spirit has proved to be a vital component in the acceptance and the success story of the Strasbourg system. What has emerged is a normative system, which is laid out in abstract terms, providing a normative European framework against which local values and human rights conceptions are measured and interpreted.2 This change, the emergence of the Strasbourg system and of the discourse of universal human rights law, signified a profound transformation; the national communities lost not only their exclusively local (national) character, but also their human rights frameworks lost their sovereignty and ability to authoritatively form their own (national) human rights cultures. Human rights,

*  The author would also like to acknowledge the financial support of the Grant Agency of the Czech Academy of Sciences through a project on ‘Human Rights in Inter-Cultural Perspectives’ (grant ID: 13-30299S) awarded to the Institute of State and Law of the Academy of Sciences of the Czech ­Republic, created under subsidies for a long-term conceptual development (RVO: 68378122). 1  Samuel Moyn claims that human rights emerged in the late 1970s as an explicitly anti-political and moral response to the (supposedly) failed socialist and communist politics of the time. See S Moyn, The Last Utopia: Human Rights in History (Cambridge, MA, Belknap/Harvard University Press, 2010). 2  ‘In interpreting the Convention regard must be had to its special character as a treaty for the collective enforcement of human rights and fundamental freedoms … Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective … In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with “the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society”’: ECtHR, Soering v UK, judgment of 7 July 1989, Series A, No 161, § 87.

170  Petr Agha suddenly perceived as universal, independent and above the reach of nation states, even though effectively removed from the constraints of the nation state cultures, have nonetheless returned back to their national communities, albeit in a different, and yet very powerful, fashion—as integral parts of the constitution of the nation states, although this time much less dependent on the local communities. The emergence of the Strasbourg system brought about a very complex web of interconnected considerations. The subsequent text will therefore particularly focus on those areas which are not addressed very often by commentators and which are nonetheless crucial for our understanding of the role and functions that the ECHR plays in contemporary Europe. First of all, the Strasbourg system, as it stands, makes it difficult to identify the one body that protects human rights. Is it the European Court of Human Rights (ECtHR) or the nation state? Modern law in general, including human rights law, is characterised not only by its highly formal character but also by the fact that there is a centre from which the law is produced or from which the law is adjudicated and enforced. The literature on the Strasbourg human rights system often focuses on the benefits of the Court having acquired the ability (power) to create official doctrine and determine what is the adequate interpretation of the Convention, thus portraying the Court as a pan-European point of authority (and reference). However, the Court does adjudicate on human rights violation, while also paying attention to considerable variations in national responses, and at the same time the very same state that was ruled against by the Court applies the very same decision in which it was found to have violated its obligations under the Convention regime,3 ultimately leaving the responsibility for ensuring the protection of the rights and freedoms enshrined in the Convention to Member States,4 which exemplifies the subsidiary nature of the Strasbourg system. The effective functioning of the Convention system rests on the assumption that there are strong and effective protection systems in place at the national level. The process of human rights application (or protection) is in a nutshell twofold. In the first place, the national legalisation forms the legal discourse of human rights in the national arena, but in reference to the overarching, beyond-the-state mechanism of the Convention framework. When this interpretation of the shared, normative framework is challenged by the mechanism of individual application, the nation state engages with the reasoning of the individual, first at the level of the national legal system, and within the framework of and with reference to the Convention.5 3  Pursuant to art 46 of the Convention, States Parties ‘undertake to abide by the final judgments of the Court in any case to which they are parties’ (ECHR, CETS No 005). At the national level, states must ensure the implementation of ECtHR judgments by taking action to redress the unjust situation of those found to have been wronged, through compensation to the victim, abolishing or amending impugned legislation and/or changing illegal practices (ECHR, art 41). 4 ‘The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights.’ ECtHR, Handyside v UK, judgment of 7 December 1976, Series A, No 24, § 48. 5  The Convention was incorporated into national legal systems through constitutional provision, statute or judicial decision. See Helen Keller and Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford, Oxford University Press, 2008).

The Paradox of Human Rights and the Role of the ECtHR 171 This process is often portrayed in terms of a clash between the partisan world of politics and the normative world of principle,6 but the process is in fact rather reminiscent of a dialogue or even cooperation. This observation is further supported by the fact that the Convention itself is a result of a shared decision of the members of the Council of Europe on the need to set a system of human rights protection.7 On the one hand, the Court is the adjudicator of the meaning of the text of the Convention,8 but on the other hand, the Convention in itself was in the first place created by the shared efforts of the states, which were representing the local communities and their members, which make up the Council of Europe and also set up the Court. Therefore, the state and the Court both mutually share the power (or burden) to protect human rights. There is yet another complication: when we look at the case law of the Court, we quickly realise that we deal with cases, which are never the case of a straightforward application of the one meaning of a particular human right. They rather represent series of collisions between the claim of an individual person, the current understanding of the content of human rights in the national milieu and the European standards as expressed in the text of the Convention and the case law of the Court and even different human rights. What this shows is that the meaning of rights is constructed in a process of deliberation across multiple levels and amongst different actors rather than simply found, and the Strasbourg judge effectively becomes only one of the authors of the rule applicable for the national (and, by extension, the European) community. Second, it is not quite clear who we should understand to be the author of the meaning of human rights. Is it the states that agreed upon the text of the Convention, is it the Court that adjudicates on the concrete meaning of human rights or is it the individuals who complain that their rights have been violated? We could hardly consider the Court to be the sole author of the meaning of human rights, because the author, so to speak, is not just she who delivers the authoritative meaning of how a human right is applied in concrete circumstances; we also need to include those who contribute to the meaning of the normative frameworks which provide foundations to human rights law. The Court is definitely the author of the text of the judicial decision, but is it also the author or co-author of the (normative) rules, which govern the final decision on the concrete meaning of a human right in question? If, on the other hand, we consider the states as authors, which have been invested with the power to make law, can we consider the Court 6  Most visibly represented by G Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010) 21(3) European Journal of International Law 509. Here he analyses the Court’s interpretative ethics and the extent to which it is based on a moral reading of Convention rights; he also argues that the Court is the primary body to identify moral values. 7  Preamble to the Convention: ‘Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms; … Being resolved, as the governments of European countries which are likeminded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration.’ 8  ‘The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the Protocols’ (art 32).

172  Petr Agha to become a form a reader that has been invested with the power to find true and authoritative meaning (ie, the best possible interpretation)? The process of the application of the Convention is not just a straightforward judicial activity revolving around a human right with the one right meaning, culminating in delivering an authoritative decision; rather, it is an activity of communication and deliberation, involving different audiences as well as revealing the domestic cultures at play, the stories of particular human lives etc. What appears to be a key moment in the process of adjudication is interpretation, which assigns a concrete act of a person or a piece of legislation a meaning within the framework laid out by the Convention as well as the existing interpretations as captured by the case law of the Court and the sentiments prevalent in the nation states. What this chapter will argue is that the separation between law and politics, national and European, and individual and society is never a secure route to the successful application of human rights, mostly because human rights do not tell as coherent a story as many would wish. Those who interpret human rights—the Court, the nation states and the complaining individuals—all become co-authors, who co-create the meaning of the normative framework applicable in the concrete cases at hand. The normative framework of the Convention oversees the provisions which are created by those who take part in the process. The role of the Court is therefore mostly to hold this space in place, providing human rights disputes with a unique forum.

II.  HUMAN RIGHTS AS A MEANS, NOT AS AN END

We live in relation with others and find recognition in socially situated encounters.9 I think it is important to highlight here that the Convention does not come ex nihilo; it does not precede our contemporary political lives. It has been based on historical experience and other considerations; in other words, on some kind of originary decision.10 And as a product of real, and normally problematic, social and political processes, the implementation of human rights cannot be taken solely as an innocuous epistemic activity. The Convention rights retain this imprint. In order to account for the variables that enter the debate on the human rights standards in Europe, the jurisprudence of the Court has over time developed a framework which rests on three pillars: (i) the notion of fundamental rights;11 (ii) the dynamic approach to the Convention;12 and (c) the obligation of Member States 9  Joseph Raz, ‘Human Rights without Foundations’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford, Oxford University Press, 2010). 10  Preamble: ‘Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.’ 11  Ireland v UK (App No 5310/71) [1978] ECHR 1 (18 January 1978). 12  Tyrer v UK (App No 5856/72) (1978) 2 EHRR 1, [1978] ECHR 2; Marckx v Belgium (App No 6833/74) (1979) 2 EHRR 330, [1979] ECHR 2.

The Paradox of Human Rights and the Role of the ECtHR 173 to protect the rights of the Convention effectively and practically.13 Over time, the adjudicative practice has therefore, as a reaction to these factors, developed techniques which allow for different ‘margins’ in the interpretation of the Convention, by making it possible to engage with the intricate moral and political complexities of human rights adjudication.14 The margin of appreciation (MoA), as a judge-made technique, reflects decades of experience regarding what an effective human rights adjudication entails and requires. The founding idea behind the Convention and the Strasbourg human rights framework more generally is animated by what Steven Greer called the ‘priority to rights’ conception,15 reflecting a basic intuition that human rights enjoy a kind of special priority. Human rights discourse is intensely oriented towards (the protection of) the individual; human rights instruments are framed in terms of the protection of rights due to each person from their immediate surroundings. This normative umbrella, that is a list of rights to which the parties agreed to and the creation of a semi-judicial body were both believed to be the necessary condition for the emergence of European human rights framework, which would be effective as well as capable of reconciling the existing plurality of interests, values, ideologies, political visions, cultures and religions in Europe. This emphasis on the individual (human rights) has led many theorists to underestimate the fundamental human need to belong to (articulated) collectivities as much as the emphasis on reason, have underestimated the importance of emotions,16 just as much as the emphasis on unity and universality17 has underestimated the fact of plurality.18 It is here that we encounter the first problematisation of the ideas which set the Strasbourg system in motion in the 1950s. Even if we agreed that rights do enjoy priority and arrived at a list of such rights, the assessment of how a particular human right should be implemented (or protected) often depends upon the evaluation of different values and means of their realisation. Also, given that human rights never come with meaning on their sleeve, much less so against the backdrop of 47 different jurisdictions, human rights adjudication inevitably entails many

13 

Airey v Ireland (App No 6289/73) Series A, No 32 (1979) 2 EHRR 305, [1979] ECHR 3. good example would be the case of Maurice v France (ECtHR, judgment of 6 October 2005, Reports 2005-IX). Here, the Court examined the substantive issue (the right to respect for private life), but also focused on the fact that the issue had been thoroughly debated in the French Parliament and that account had been taken of all the relevant legal, ethical and social considerations. The Court found that ‘Parliament based its decision on general-interest grounds, and the validity of those grounds cannot be called into question by the Court’ (§ 121). A similar approach is visible in ECtHR, Evans v UK, judgment of 10 April 2007 (GC), 15 S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006). 16  C Mouffe, On the Political (London, Routledge, 2005) 6. 17  J Rawls, Political Liberalism (New York, Columbia University Press). 1996. 18 R Rorty, ‘The Priority of Democracy to Philosophy’ in M Peterson and R Vaughan (eds), The Virginia Statute for Religious Freedom (Cambridge, Cambridge University Press, 2003) 257–82; Stanley Fish, ‘Mission Impossible’ in The Trouble with Principle (Cambridge, MA, Harvard University Press) 162–86, 320–21; J Gray, ‘What is Dead and What is Living in Liberalism?’ in Post-Liberalism: Studies in Political Thought (New York, Routledge, 1996) 283–328, 347–48. 14  A

174  Petr Agha competing conceptions of the common good. And, to complicate things further, the bundle of competing interests that collide in each and every case that the Court hears cannot be measured easily in equivalent and ready-made units of gravity.19 The jurisprudence of the Court consistently demonstrates how very ambiguous the concept of universal human rights is when it is applied in concrete circumstances, and how the interplay of universal values and their particular instantiations, or what is often called the tension between human rights and the nation-state politics, is inherent to the very concept of universal human rights. And, in the experience of the Court, the successful realisation of the Convention rights does not always require rights to trump all other considerations automatically. The authoritative function (akin to Dworkin’s trumps) of human rights that many imagine to be the most desirable function of the Convention may be appropriate in the case of blatant violations of human rights, ie, the prohibition of torture (Article 3 of the Convention), but so much less so when the Court is faced with looking for the delicate balance between many relevant competing considerations, particularly in the case law on Articles 8–11. However, this does not mean that rights do not enjoy a special status; it demonstrates that the Convention establishes a prima facie rather than a definite trumping.20 However, the Convention system and the rights it puts forward for the use of the community and its parts would not be effective without holding on to the presumed existence and shared belief in values which transcend local preferences, histories, sentiments etc. The foundational gesture of the community established by the Convention carries an imprint of the universal, but this universalist ambition is not capable of being fully represented by a universally valid, self-explanatory set of rules. Rather, these ambitions find their expression and authority in the same manner in which they were conceived—precisely through a shared understanding and consensus of the political community. And the institutional design, which accompanies the normative framework of the Convention, bears similar signs of fragmentation. The Court frequently emphasises that its role is subsidiary to the national protection system,21 with the local framework carrying a large portion of the burden of interpretation and application. Also, within this pluralistic structure,

19 I Berlin, The Crooked Timber of Humanity: Chapters in the History of Ideas, H Hardy (ed) (Princeton, Princeton University Press, 1990). 20  In the case of Hirst, for example, the Court found that ‘it must confine itself to determining whether the restriction affecting all convicted prisoners in custody exceeds any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1’ (ECtHR, Hirst v UK (No 2), judgment of 6 October 2005 [GC], Reports 2005-IX, § 84). 21  Vučković and Others v Serbia [GC], no 17153/11, §§ 69–77, 25 March 2014: ‘It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level.’

The Paradox of Human Rights and the Role of the ECtHR 175 Convention rights are upheld by a ‘decentralised’ authoritative interpreter, that is, the Court in Strasbourg, and are enforced with the aid of the very same national authorities that the Court had ruled against.22 Typically, Protocol No 11 confers upon the Court compulsory jurisdiction over individual petitions; however, the Court’s decisions are always implemented within the national legal order and under national rules. The Strasbourg system is therefore not hierarchically constructed in the traditional sense. Already here, we see that the Court collaborates with national authorities in human rights implementation, a fact which is, for example, spelled out in the requirement of Article 32 of the Convention that domestic remedies must be exhausted prior to the lodging of the individual application.23 The design of the Strasbourg system can hardly be considered as one which prima facie juxtaposes the Court against Member States or the Convention against the national jurisdictions. Therefore, although we have an overarching normative structure, there is no single hierarchy of values within this structure that would encompass the entire order—instead, what we have is a series of interrelated hierarchies or value systems; their relationship is much more layered, complex and intertwined.24 This normative structure can perhaps best be described as heterarchical. Formally, the Convention is a multi-party regional treaty, but functionally it operates, with the participation of the Court, as a partial constitutional order focused on the realisation of a list of human rights enshrined in the Convention and agreed upon by the parties to the Convention. This semi-constitutional nature of the supervisory system set up by the Convention lacks the means to secure the hierarchy and unity of legal norms that the nation-state constitutional systems have at their disposal.25 The role of the Court is therefore to find the balance between competing considerations.26 This is why it is important that the process of human rights application is combined with the process of justification, which seeks to reconcile the normative imperatives enshrined in the Convention with its particular instantiations elaborated within the respective Member States and with reference to the concrete needs and circumstances in question. 22  M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in JL Dunoff and JP Trachtman (eds), Ruling the World? International Law, Global Governance, Constitutionalism (Cambridge, Cambridge University Press, 2009) 303–10. 23  Article 35 of the Convention reads as follows: ‘The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognized rules of international law, and within a period of six months from the date on which the final decision was taken.’ 24  M Rosenfeld, ‘Rethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’ (2008) 6 (3–4) International Journal of Constitutional Law 415. 25 L Wildhaber, ‘A Constitutional Future for the European Court of Human Rights?’ (2002) 23 Human Rights Law Journal 161, 161; S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge, Cambridge University Press, 2006) 172–73. 26 ‘Where the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law.’ Roche v UK [GC], no 32555/96, ECHR 2005-X, § 120.

176  Petr Agha In order for this framework to be operative, a different interpretation of the commonly recognised human rights needs to be sufficiently reflective of the existing understanding of the human rights in question for the parties to continue dialoguing within this common framework. At the same time, however, the Convention needs to be postulated with sufficient gravity in order to allow for its significance to be clearly demonstrated and to provide for the unity, order and cohesion that are required for the European project envisaged by the Strasbourg system to emerge.27 This of course produces mutually conflicting answers. The important component in the Strasbourg system is not just a list of authoritative norms, but rather a mode of argumentation and of justification which is developed in the interaction between different national, legal and symbolic orders, supervised by the Court and initiated by individuals who claim that their rights have been violated.28 From this perspective, the Convention rights, as they are applied under the MoA, do not find strength from their presupposed universal rationality with the abstract individual as their object of protection. They gain momentum in relation to how they acquire a dialogic function; they become reasons which are the product of the ‘interaction of a plurality of subjects under conditions of equal power that do not suppress the interests of any’.29

III.  HUMAN RIGHTS AS A SELF-AUTHORED NORMATIVE FRAMEWORK

In order for human rights to be ‘practical and effective’, they need to be used, applied and exercised in relation to other (human) rights and other considerations, and this always happens in an uncertain balance. But if the variables of a case (the rights in question, local cultural, political and religious sentiments or even the pan-European perception of certain subjectivities) are constantly in a state of flux, then there is no stable ground for self-evident facts and a ready-made judgment. In addition—and to complicate matters even more—it is not only the object of adjudication that exists in a continuous state of transformation, but also the ‘subject’ doing the interpretation (the European societies) changes over time and across space as well. 27  An example may be found in the case of Pretty, which concerned the ‘right to die’. Although opinions on the issue are extremely divided, the Court stressed the basic principles of the Convention: ‘The very essence of the Convention is respect for human dignity and human freedom. Without in any way negating the principle of sanctity of life protected under the Convention, the Court considers that it is under Article 8 that notions of the quality of life take on significance … The applicant in this case is prevented by law from exercising her choice to avoid what she considers will be an undignified and distressing end to her life. The Court is not prepared to exclude that this constitutes an interference with her right to respect for private life as guaranteed under Article 8 para. 1 of the Convention.’ ECtHR, Pretty v UK, judgment of 29 April 2002 [GC], Reports 2002-III, §§ 65 and 67. 28  ‘Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of Convention States.’ ECtHR, Karner v Austria, judgment of 24 July 2003, Reports 2003-IX, § 26. 29  IM Young Justice and the Politics of Difference (Princeton, Princeton University Press, 2011) 106.

The Paradox of Human Rights and the Role of the ECtHR 177 This discursive aspect of the Convention system has a dimension that is often overlooked and that we can expound using some of Jacques Rancière’s ideas. Rancière holds that politics is democratic not in the sense of a set of institutions, but in the sense of forms of expression.30 He develops a concept of the so-called subjectification, a process through which new ways of doing and being come into existence.31 The Convention rights and the Strasbourg mechanism tie the claim of an individual to a certain language and (normative) frame of reference, while at the same time providing the nation state with discourse, as well as the aggrieved individual with a certain surplus in relation to where we find carefully dispersed roles, tasks and the languages, understood as suitably fitting to the individuals and groups within the particular communal order. The individual in claiming a human rights violation depends on a frame of reference (Convention rights). This process is therefore a supplement to the existing order because it adds something to this order. It refers to ‘the production through a series of actions … not previously identifiable within a given field of experience, whose identification is thus part of the reconfiguration of the field of experience’.32 The struggle of an unrecognised party for equal recognition within the established order is then possibly capable of reconfiguring the situation in which such claims are enunciated.33 At the same time, the claim cannot be reduced to that frame of reference only, since in order for it to be effective, it must also be embedded in common tradition because this particular tradition is also the precondition for the observance and subsequent implementation of this ideal in the first place—in this way, it ‘decomposes and recomposes the relationships between the ways of doing, of being and of saying that define the perceptible organization of the community’.34 Precisely for this reason, this supplement also divides the existing order35 because the process of subjectification is always also the process of ‘disidentification, removal from the naturalness of a place’, which by way of its appearance also disrupts the until-then existing communal order and balance.36 Habermas shows the importance of discussing, arguing and making demands in a variety of registers (moral, legal or political) and postulates an important condition of legitimacy for the norms binding individuals.37 However, this process is never strictly linear, but involves transformative ruptures, U-turns and deadends. Any (philosophical) attempt to posit a unique and universal solution across 30 

J Rancière, Short Voyages to the Land of the People (Stanford, Stanford University Press, 2003) 101. Rancière, Disagreement: Politics and Philosophy, J Rose (trans) (Minneapolis, University of Minnesota 1999) 26. 32  ibid 35. 33 J Rancière, The Politics of Aesthetics: The Distribution of the Sensible, Gabriel Rockhill (trans) (New York: Continuum, 2006) 51: ‘Politics exists when the figure of a specific subject is constituted, a supernumerary subject in relation to the calculated number of groups, places, and functions in a society.’ 34  J Rancière, On the Shores of Politics, L Heron (trans) (New York, Verso, 1995) 40. 35  Rancière (n 30) 224–25. 36  Rancière (n 34) 36. 37  J Habermas, Theory of Communicative Action, Volume One: Reason and the Rationalization of Society, Thomas A McCarthy (trans) (Boston, MA, Beacon Press, 1985). 31 J

178  Petr Agha Europe and different communities is not simply impossible, but is also highly undesirable in terms of the goals of the Convention. In order for such (far-reaching) norms to be legitimate, individuals and communities need to leave their mark on the creation, interpretation and application of those normative frameworks.38 Each human rights claim is then perhaps better understood as an advent in the inherent plurality of sharing the polis with other members than its failure. The MoA brings a very important component to human rights adjudication, which tends to be overlooked in the literature on the MoA, and it can be described along the lines of Habermas’ deliberative model, where members of the polity determine definitions of basic norms of living together, such as human rights, yet not (only) as protective shields, reason-blocking arguments etc, but rather as integrative tools of the common project.39 On this reading, the application of human rights does not require an authoritative top-down statement which is justified by a universal set of principles transcending the political life of the polis—it is transformed into a process where human rights become not an end in itself (ie, trumps), but means for the continual shifting of the common normative framework we have established and which we share. As Habermas has put it: ‘The desired internal relation between human rights and popular sovereignty consists in this: human rights institutionalize the communicative conditions for a reasonable political will formation. Rights, which make the exercise of popular sovereignty possible, cannot be imposed on this practice like external constraints.’40 Human rights and popular sovereignty are therefore intertwined. Sometimes public arguments for substantive, dignity-based rights can serve to unsettle and open up an otherwise constrained political reality and vice versa. Individual application in this sense documents both the form of space in which human rights are realised, that is, the particular circumstances, and the space of form(s) expressed in the particular language of the Convention, that is, the normative claim. The practice of individual applications therefore simultaneously affirms the prominent role of human rights standards in the political life of the community, while allowing the human rights standards to be interpreted again and again. Hence, rather than a mere protection of an aggrieved individual, individual applications under the MoA carry with them a much wider function—they set a forum around which the parties to the dispute deploy an arsenal of arguments, images and symbols. They construct a scene on which (political) subjectivity occurs. This is why it is vital that both the argument and the stage against which a statement is going to be counted as a valid argument must be generated—that is, it is necessary to simultaneously produce 38  See further S Marks, ‘The European Convention on Human Rights and its “Democratic Society”’ (1995) 66 British Yearbook of International Law 209, 211; and AR Mowbray, ‘The Role of the European Court of Human Rights in the Promotion of Democracy’ (1999) 51 Public Law 703, 704. 39  J Habermas, ‘Does Europe Need a Constitution? Response to Dieter Grimm’ in C Cronin and P de Grieff (eds), The Inclusion of the Other: Studies in Political Theory (Cambridge, MA, MIT Press, 1998) 159–61. 40  J Habermas, ‘Remarks on Legitimation through Human Rights’ in J Habermas (ed), The Postnational Constellation (Cambridge, MA, MIT Press, 2001).

The Paradox of Human Rights and the Role of the ECtHR 179 both the argument (the human rights in question) and the situation in which it is to be understood (the particular circumstances of the case). Individual application indeed represents a clash between competing interests, but also establishes a connection between them. The forum, which is created by the human rights dispute under the regime of the MoA, brings together not only the parties of the dispute and the Court, but also other factors that are at play in the given case (principles, passions, identities and power relations). The individual applications therefore have the capacity to produce a situation in which the seemingly incompatible and conflictual orders come together and stage the question of what the Convention requires. There is no proper model or content of a given human right to serve as the ground or the goal of the practice of the Court in advance. Therefore, the concrete meaning of a human right in a concrete situation and, by extension, the more general framework of the Convention rights do not really pre-exist the particular dispute in any meaningful way, for they are uniquely constituted by it.41 Thus, the Convention rights can be appropriated by anyone. And, as such, they never simply just pre-exist politics or govern it from some vantage point of principle; rather they are presupposed and verified by the very activities which the subjects of politics engage in. One of the corollaries of this view is not the rejection of human rights standards or the function of the Strasbourg system, but the rejection of the ability of the political community and of the Court to identify absolute criteria of judgment which would precede the concrete circumstances of the case and which could traverse time and space. Perhaps the following example may help to illustrate how the tension that is inherent in the Convention design and expressed in the MoA doctrine is productive and necessary for the successful application of the Convention. In Did Somebody Say Totalitarianism?, Žižek retells the story of Antigone. Illegally burying the dead body of her brother Polynices, who had waged war against the city, Antigone challenges the laws of the city, with reference to ‘laws of God and heaven’.42 Her act challenges the laws in place as well as the symbolic economy of the community by raising the claim that transgresses the arrangement of the normative framework in place, by demonstrating a possible gap within the societal arrangement of the community. In her eyes, her brother’s dead body and the rule which prohibits his burial represent a gap in the laws of the city. And while Creon denies the realisation of what under common circumstances is considered to be a universally accepted right of every citizen of the polis, on the grounds that Polynices had waged war against his own city and community, Antigone challenges this exception to the universally recognised right as well as the justification which was offered by Creon,

41  As Rancière (n 31) explains: ‘Parties do not exist prior to the conflict they name and in which they are counted as parties’ (at 27). 42  ‘Justice that dwells with the gods below knows no such law. I did not think your edicts strong enough. To overrule the unwritten unalterable laws of God and Heaven, you being only a man. They are not of yesterday, or today, but everlasting, though where they came from, none of us can tell.’

180  Petr Agha who in this respect acts as the representative of the polis, and she eventually buries her brother’s body. What this act does is to bring together in one moment all the variables that make up the normative system of a community, its symbolic economy, the legal norms which refer to this framework as well as the popular understanding of what constitutes valid norms in the given community. Antigone also reveals that there is a normative as well as a symbolic system in place, which excludes some different understandings of the normative framework in place from becoming its integral part. The claim of Antigone is not put forward to claim protection from the majority or to claim help for the aggrieved individual whose right to X was violated by the majority. The lesson of Žižek’s Antigone is quite different. Antigone makes reference to the normative order in place, an order which is higher than the rule of man, but at the same time, the primacy of such an order is acknowledged by the members of the community, as well as exceptions which were imposed on their otherwise universal validity. Her act challenges the limitations imposed on the rights which are otherwise afforded to all members of the community, and in the very same vein challenges the inconsistency and deficiency in how that which is accepted as universal is applied to some cases. Antigone’s claim is not rooted solely in some external normative domain; she remains firmly rooted within the normative order of the polis. Indeed, she makes reference to a higher order principle, the laws of gods, but at the same time, she wants the polis, her polis to hear her out and consider the reasons she puts forward, while using the very same normative frameworks and language as the polis, which excluded her from the agreed-upon scope of the right to X. Individual applications, on this understanding, invoke the language of human rights in particular circumstances and reveal that ‘in what is given to us as universal, necessary, obligatory, what place is occupied by whatever are singular, contingent and the product of arbitrary constraints?’43 The MoA therefore allows human rights to emerge as relations and not just as one-dimensional negative constraints on the political life of Europeans, and helps to focus the Convention framework away from the negative and one-dimensional ‘protection of an individual right’ that some commentators imagine for it. Instead, this judicial technique focuses on the wider role of the Strasbourg human rights framework, which is not just to make rights effective, but also practical and capable of changing the coordinates of political life from within the very same polis from which human rights violations emerged. If human rights are contingent expressions and products of the social struggles in which they arose, the individual once again, via the individual application, becomes the central figure of the process of human rights adjudication, this time not as a figure in need of protection, but as a political actor par excellence. This is when and where human rights translate into concrete forms of practising critique and effective change. This interaction, facilitated by the mechanism of individual applications under the MoA, provides the opportunity to generate new and sophisticated (legal) 43  M Foucault, ‘What is Enlightenment?’ in P Rabinow (ed), The Foucault Reader (Harmondsworth, Penguin).

The Paradox of Human Rights and the Role of the ECtHR 181 language which makes it possible to capture that which was inexpressible before. This act of ‘rendering visible the invisible’44 helps to identify the possible blind spots in how the Convention rights have been applied thus far. The individual application does refer directly to the individual’s position in the symbolic order, but at the same time reflects the broader considerations of the life-world of the polis within which it is situated. The particular individual claim does not establish a new human right or argue its case from a position of complete and utter detachment; on the contrary, the claimant chooses from among the existing possibilities rooted in the value system of the society of her origin. Both the argument levelled against the existing social order and the social order itself are, under the MoA, staged together. Against this background, individual applications are treated as instances of a possible failure in the (domestic) implementation of the Convention. This also present us with a requirement expressed in the shared language of human rights to hear out that which was beyond justification in the Member States or which could not be said or thought under the domestic symbolic order.45 When the individual application is lodged, the applicant not only seeks protection from the violation of his right, but also wants her voice to be heard and to be recognised as included in the commonly shared frame of reference.46 Such a person becomes, by extension, a representative of a larger (political) issue; the claim is not just the claim of an aggrieved individual, one who has to be protected by means external to the state by the normative frame of reference of the Convention with the Court as its guardian. The fact that individual application signifies a (potential) failure of the existing democratic order of one of the parties to the Convention presents us with the need not just to improve the implementation of the Convention (in other words, to protect the individual from the violation of her right), but also requires us to possibly fine-tune or reconstruct that which represents the accepted application of the Convention right (ie, the second paragraph limitations of Articles 8–11). The individual applications are a visible testament to the existence of a (political) community which not only comes together in order to protect a possibly aggrieved individual by way of extracting a solution with a reference to a shared idea of universal human rights, but also tries to constitute its own human rights framework anew, with the help of the complaint lodged by an individual member of the polis. On this reading, human rights are not automatically associated with the protection of rights of individuals only, but are coupled with a much broader dimension, that is, with the idea of participation and recognition within the wider framework of the political community.

44 

J Derrida, ‘The Gift of the Future’ (2005) 16(3) Differences 68–75. J Derrida, ‘Force of Law: The “Mystical Foundation of Authority”’ (1990) 11 Cardozo Law Review 919, 967–73. 46  ‘The political field is one of the privileged sites for the exercise of the power of representation or manifestation that contributes to making what existed in a practical state, tacitly or implicitly, exist fully, that is, in the objectified state, in a form directly visible to all, public, published, official, and thus authorized.’ P Bourdieu, ‘Political Representation: Elements for a Theory of the Political Field’ in John B. Thompson (ed), Language and Symbolic Power (Cambridge, MA, Harvard University Press, 1991) 235. 45 

182  Petr Agha IV. CONCLUSIONS

This chapter has so far put forward a different form of reflection than we commonly encounter in the literature on the MoA, one that transforms human rights into a practical inquiry. It is primarily concerned with creating an opening, spaces where the individual dissenting position may reform the conditions under which it arose in the first place. The concept of the MoA was presented both as a function of human rights discourse and as a site where the endless proliferation of meaning associated with the idea of human rights meets, becomes disrupted and gain new forms and new meanings. Individual applications were presented as a form of critique that has the capacity to re-establish the productive tension between human rights and the political life of society. It occurs, as it were, each time something new and different interacts with the normative order in place and cannot fit within the existing domestic (human rights) framework. However, the individual application is not a step outside the inconsistency of the domestic legal, political and moral framework or the particular circumstances in which the individual finds herself; on the contrary, it is a step into the very inconsistency of that particular order. By raising the authority and normative framework of the Convention, the individual chiefly engages with the conditions in place not only with the universal external framework represented most visibly in the list of Convention rights. Antigone’s act, mentioned above, is an act which on the one hand takes a step beyond the existing normative and symbolic order by engaging the (higher) law of gods, but is at the same time entirely embedded within the concrete legal, political and moral order. And for this reason, Antigone’s act is by definition political because it is shared. Resonant with this is the emphasis this chapter puts on human agency as realised through local political practice. What kind of structure might be capable of producing and implementing ‘self-authored’ human rights? First of all, human rights is not something to be determined by tiny elite cultures of experts, nor is it merely the outcome of bargaining among interest groups. Rather, it is the repeated action of generating argumentation, reasons, language and recognition which allows individuals and groups to author their way into the shared symbolic structure of the public sphere. This chapter reconceives human rights as embedded within community and as ‘self-authored’ by their own addressees (individuals and nation states alike) and emergent through collaborative activities. In this sense, human rights represented by the human rights framework offer a powerful critical stance, but this stance is not one-directional—it requires a field of recognition within the existing structure of other supportive social claims and implies some degree of institutional support. Human rights depend on others for their existence and implementation, and are rooted in the boundaries of the nation state, and yet transgress borders and nation-state jurisdictions. The emergence of universal human rights frameworks also means that human rights lost the one meaning as well as the one centre of authority—instead of one ‘sovereign’, we have an expanded framework including a wider community of actors, reasons and values. The power to issue

The Paradox of Human Rights and the Role of the ECtHR 183 authoritative statements about the meaning and content of human rights norms has first been passed from the national arena to an international institution: the Court. However, with the emergence of the MoA, a different dynamic had been created, one that allows for the reinvention of the meaning and content of human rights within a wide network of actors, values and their plurality. On this understanding, the role of the Court is not necessary because of its expertise, which is superior to the national courts. As we can see, the Member States are, under the umbrella of the Strasbourg system, evidently no longer the master controllers of human rights, but neither is the Court. There is a double bind here: the fact of plurality and the overarching sense of incommensurability visibly indicate that there is no master discourse on which to depend, and so we are completely dependent on the public sphere to generate human rights meanings. Since our world is the world of relations, human rights give structure to our social world, but not as transcendent entities, as some would like to have it. We need the MoA because human rights are split between their universal aspiration and their particular function within democratic societies. Such a communal understanding of the role of the Convention and of the Court helps to eventually overcome the received opposition between the ‘substantialist’ notions of human rights and the alleged ‘political compromises’ that the MoA often gets associated with. Rather, as this chapter argued, the MoA has the ability to redefine the substance of the Strasbourg human rights system as the space of negotiated settlement between the pluralities of contextual variables and universal aspirations of shared values. On the other hand, there is no question that under the practice of the MoA, one finds hidden condescending, racist, sexist and other attitudes as well as interests of a particular group or culture disguised as, ie, the ‘necessary in a democratic society’ exception. Does this fact automatically mean that every attempt at formulating the shape and content of a universal right in concrete and factual circumstances and with reference to the political reality of European societies should immediately be suspected of being seen as an another attempt at articulating the interests of a certain (dominant) group at the expense of another? Rather, is it not that the very gesture of a human rights dispute presupposes a particular shared position of the parties with reference to shared universal values? To say that we can protect human rights by dislocating them from politics while leaving the underlying political situation untouched will not work. Instead, we need a forum where with a critical contextual inquiry, we can address why it exists in such a way. And the MoA is just one such forum amongst many. Although the interplay between politics and human rights adjudication has generally been acknowledged, there has been a tendency to construe human rights as somehow apart from the political and, moreover, to situate human rights adjudication somehow exclusively within the domain of the Court, the institutions of the state and the language of the law. This chapter have looked at the political as the visible appreciation of the function of human rights, which were conceived of as imbricated in complex relationships between various elements of human lives. It has also looked at the manner in which various practices attune us to the way

184  Petr Agha in which human rights issues are made manifest and cognised. To an extent, as argued above, such framings draw upon the political life of the polis, but they are also concerned with the wide-ranging debates on the character and importance of the role of human rights as transgressing the very same debates. The implementation of human rights is thus only enabled by a continuous reconstitution of political explanations and objects of human rights discourse as provided for by individual applications. Emblematic of this is the proliferation of the MoA, whose practice not only recasts human rights as a specific kind of political language, but which also packages locally specific components into forms that are applicable across Europe. This nexus of values, practices and affects that the MoA brings to the table on the one hand underscores the ubiquitous role that politics play when entering the world of human rights, but on the other hand also highlights how human rights under the MoA helps to integrate human rights within the political fabric of the polis, not merely protecting certain values, but actually integrating them into the very functioning of society. Human rights under the MoA become more than a ‘weapon’ against oppression; they become a matter of a continuous practice and an integral aspect of the societal narratives—and, as such, complicit in the ordering of societies and individuals. Indeed, it would be difficult to envisage any meaningful human rights framework which would be divorced from the communities it binds. It was in response to debates on the role of human rights in European societies under the MoA that this chapter has outlined a framework that, following Rancière, construes human rights as a significant site of political struggle. This account prompts us to question not only the imperatives of a human rights law, but also the prevailing social order within which human rights law operates and whether it is embedded in the epistemologies upon which that social order is founded. However, to return to the issues raised in the introduction to this chapter, I want to speak to the broader relevance not only of a politicised account of human rights that I have offered, but also of what lies at the heart of the adjudicative practices discussed here. I implied earlier that my argument had implications that extended well beyond the purview of the Convention, which has, for the most part, been the ‘home’ of those researching and writing on human rights law. What the practice of the MoA demonstrates, I want to suggest, is the relevance of ‘the political’, which brings human rights and politics into some form of collaborative engagement, working together to engage public interest in the vital political and ethical issues of our day, making visible the policies, practices, artefacts and life-forms that emerge from within the polis.

Index Note: Alphabetical arrangement is word-by-word, where a group of letters followed by a space is filed before the same group of letters followed by a letter, eg ‘legal system’ will appear before ‘legality’. In determining alphabetical arrangement, initial articles and prepositions are ignored. abortion, 30 abstract entities, legal norms as, 74 abstract questions, 126 abstraction, power, 100 abuse of power, Contracting States, 67 accommodation based on discursive justice, 25 actual people: social institutions and, unbridgeable difference between, 110 adhoccery of politics, 105 adjudication, law, 170 administrative law, 90 adoption, 134 advertising, religious, 154 affirmative normative role of margin of appreciation, 39 agreements, 10–11 Airey v Ireland, 4 allegiance, oaths of, 26 ambiguity of universal human rights, 174 antagonism, 50 anti-LGBT: Eastern European countries, 139 anti-positivism, 74–75 Antigone, 179–80 application process, ECHR, 172 appropriation, Convention rights, 179 Arai-Takahashi, Y, 31 argumentation, legal, 103 Aristotle, 109 arrest, arbitrary, 32 artistic expression, 132 artistic speech, 143 assembly, freedom of, 32 association, freedom of, 32 associative life, 160 Augustine, St, 102 author of meaning of human rights, 171 authoritative function of human rights, 174 authority and foundation paradox, law, 98 authors, Contracting States as, 171 autonomous existence of religious communities, 149, 160–62, 164–66 autonomy, 105 autopoietic society, 110 Axel Springer v Germany, 70

balancing, 9–10, 160, 166, 174 Balkans, 23 Baxi, Upendra, 51 Bayatyan v Armenia, 153 Belgian Linguistic case, 2 Bell, John, 132–33, 138, 143–44 Bentham, Jeremy, 104 Benvenisti, Eyal, 38, 129, 132 binary code of prisoner disenfranchisement, 127–28 binding constitutions, 130 birth discrimination, 23 blanket bans, 124 blind spots: possible, in Convention rights application, 181 bodies protecting human rights, 170 bounded rationality, 79–80, 85 bright-line rules, 67–68 Brighton Declaration on the Future of the European Court of Human Rights, 6, 55 broadmindedness, 141 Burqa-ban, 153 Caldron, Jeremy, 121 Canada, 115 capitalism, 20 case overload, 83 Catholic Christianity, 19–20 Caucasus, 23 a certain margin of appreciation, 141 Chambers, Samuel, 52 Chaplin case, 157 Chassagnou v France, 59, 62, 65 Chechnya, 23 Cherniak, Christopher, 79 Christianity, 19–20, 41 Church–state relations, 147–48, 150–51 citizens: individual wills, 98 states and, relationships between, 99 citizenship, 25–26 civic nations, 98 civil rights, semantics of, 109 civil society, 93 civil unions, 135–39

186  Index clashes between human rights, 8, 55–57 clashing rights principle, 61–62 incoherence with wider case law, 63–65 inconsistency with historical origins, 62–63 reason for existence, 65–67 compromise, 66 conclusion, 69–70 Contracting States: democracy-enhancing reasons, 69 optimal solutions, 68 reasons against being best placed to deal with clashes, 67–68 reasons for being best placed to deal with clashes, 65–67 democracy-enhancing reasons for resolution by states, 56–57, 66 ECtHR and, 59–61 clashing rights principle and, 61–65 legislators’ roles in minimising effects of, 66 margin of appreciation, 55–61 reinterpreted role, 65–69 resolution by states, 56–57 subsidiarity principle, 57–58 class, universal, 42 Coan, Andrew, 83 codified rights, 95 cognitive capacities, 79 cognitive limitations, 80 cognitive resources, 79, 81 cognitive science, 80 cohesion, social, 25 collective multiculturalism, 22 collective rights for minorities, 26 collectivities, 173 colonialism, 42–43 colour discrimination, 23 common constitutional fundamentals, 21 common good, competing conceptions of, 173 common ground, 10–11 common normative framework, 178 common standards, 4 communication, 172 inter-systemic, 102 communities as sources of values, 19 commutative justice, 109 comparative method on consensus, ECtHR, 152–54 competence, jurisdictional, 112 competing institutions, 21 competing interests, 174, 179 competing norms, 21 competing processes, 21 complementarity, 123 compromise: clashes between human rights, 66 solutions, 124–25 conceivability, 46–47 conceptions, 74

concepts, 74 conceptual arguments, 18 conceptual interpretive challenges: margin of appreciation ECtHR, 28–30 conceptual level, universal human rights, 20 concrete questions, 126 conflict avoidance, 66 conflicting cultures, 20 conflicting rights, 160 conscience, freedom of, 32 conscientious objection to military service, 152–53 consensus, 10–11 doctrine, 129–30 emerging, 152 evolving, 133–44 margin of appreciation and, 129–44 overlapping, 102, 109 role, religious rights, 152–54 uniform, 109 consequentialism, 94 constituent power, 98 constituted power, 98 constitutional fundamentals, 21 constitutional interpretive challenges: margin of appreciation ECtHR, 28–30 constitutional justice, 100 constitutional law, 90 constitutional pluralism, 21, 107 constitutional principles: European Convention on Human Rights, 29 constitutional reviews of rights, 119 constitutional rights, 98, 100 constitutionalism, 95 democratic, 96 legal, see legal constitutionalism limited views of, 119 political, see political constitutionalism constitutions: binding, 130 political, 95 contemporary societies, 49 contestation, universality, 46 contextualisation, 67–68 Contracting States, 2 abuse of power, 67 as authors, 171 clashes between human rights, see clashes between human rights ECHR enforcement, 85 ECHR obligations, 58, 89 ECtHR and, cooperation between, 58 ECtHR collaboration with, 175 local matters, 91 margin of appreciation of, 59–62 obligations to protect Convention rights, 172–73

Index 187 power to protect human rights, 171 responsibilities for protections in ECHR, 170 controversies, political, 91 Convention rights: application, possible blind spots in, 181 appropriation, 179 content: abandonment of optimal understanding of, 78 disagreement about, 88 culture, 31 definition disputes, 29 dialogic function, 176 empty of original meaning, 50 enforcement, 175 frames of reference, 177 implementation discretion, 29 interpretation, 31 evolution and seamlessly progressive approach, 49 living instrument approach, 49 liberal theories, 78 margin of appreciation, applied under, 176 objectivist theories, 78 priority principle, 29 relativist theories, 78 upheld by decentralised authoritative interpreter, 175 cooperation, social, 109 correctness, 122–23 correspondence, respect for, 32 cost/benefit considerations, 80 Council of Europe, 2, 89 European Charter for Regional and Minority Languages, 24 internal structures, 106–107 margin of appreciation doctrine within, 92 particularity of cultures, 92–93 political segmentation, 107 universality of rights, 92–93 counter arguments, universalism, 19 counter-demonstrations, 66 counter-majoritarian function of human rights, 56–57, 60, 65–67 counterfactual tests, 75 courts: as frictionless undertakings, 79 versus governments, 119 see also European Court of Human Rights creativity, 66 judges, 132–33 Creon, 179–80 crimes against humanity, 96 criminal charges, 30 criminalisation, retrospective, 32 cross-cultural universality, 44 cultural differences, 44 cultural diversity, 17, 92

cultural formations, universality and, 42 cultural functions: freedom of expression, 143 cultural implementation: relative human rights, 20 cultural limitations: universal aspirations and, legal and political balance between, 91 cultural nationalism, 22 cultural relativism, 7–8, 17, 19 normative universalism and, dispute between, 96 self-defeating, 40 cultures, 17 conflicting, 20 Convention rights, 31 European, 42 European Convention on Human Rights, relevance, 31–34 indigenous, 20 majority, 23 margin of appreciation and, 31–34 minority, 23 monoculturalism, 22 national, 26, 34 normative claims, 20 as opaque category, 25 overlapping, 20 particularity of, Council of Europe, 92–93 plurality of, 173 political, 33 protection from Western neo-liberalism need, 19 regional, 34 societal, 33 as sources of values, 19 see also multiculturalism and entries beginning with cultural Danchin, Peter G, 42 de-industrialisation, 23 decentralised authoritative interpreter: Convention rights upheld by, 175 decision-making, 79 authority, ECtHR, 133 democratic, 97–98 distribution of powers, 86 judicial, 81, 132–33 objectives, freedom to choose, 123 outsourcing of, 81, 82 political, 96, 99, 133 range of options available, 123 resource-bounded models, 81 scope of decisions, 123 decision theory, 79 Declaration on Rights of Indigenous Peoples (Draft), 24

188  Index Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 24 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, 24 decolonisation, 20, 23 deference, 123–25, 129, 151 degrading treatment or punishment: prohibitions, culture and, 31 deliberation, 172 deliberative model, margin of appreciation, 178 democracy, 2, 29, 51, 56–57, 66, 84–85 democratic constitutionalism, 96 democratic decision-making, 97–98 democratic knowledge: doctrinal knowledge and, legitimation conflict between, 108 democratic legitimacy, 31, 88 ‘democratic necessity’ tests, 21 democratic politics, as forms of expression, 177 democratic societies, 149 democratisation, politics of, 25 demonstrations, 66, 68 depoliticised politics of human rights, 48 derogations, 2 descent discrimination, 23 descriptive sense of monoculturalism, 22 descriptive sense of multiculturalism, 22 design of ECHR, tension inherent in, 179 detention, arbitrary, 32 dialogic function, Convention rights, 176 Dickson, Brice, 14 Did Somebody Say Totalitarianism? (Žižek 2001), 179 difference: justice as, 110 particularism and, 49 differential treatment, religion, 151–52 differentiation: functional, 109–10 social, 110 dignity-based rights, 178 discretionary power, 104–106 margin of appreciation exercise of, 89, 92–93 discrimination, 23, 151–52 discursive aspect, ECtHR, 177 discursive justice: accommodation based on, 25 disenfranchisement of prisoners, see prisoners disidentification, 177 dismantling universality, 43 distribution of decision-making powers, 86 distributive justice, 110 diversity, 5 cultural, 17, 92 historical, 92 jurisprudential, 92

political, 92 universalism and, 20 division of labour, institutional, 76 doctrinal knowledge: democratic knowledge and, legitimation conflict between, 108 doctrines of rights, 95 domestic legal actors, 119 Donnelly, Jack, 40 Ducoulombier, Peggy, 59 Dudgeon v UK, 47, 132, 134–35, 139, 143 Dworkin, Ronald, 5, 75, 79, 94, 174 dynamic approach to ECHR, 172 dynamic human rights doctrine, 3 dynamic interpretation of Convention, 4 Eastern European countries: anti-LGBT, 139 ECHR, see European Convention on Human Rights Eco, Umberto, 108 economic boom, 23 economic rationality, 98 economic rights, 101 economic well-being, 21 ECtHR, see European Court of Human Rights educational representation of minorities, 25 elections, free, 116 elites, 20 Ely, John, 121 Emancipation(s) (Laclau, 1996), 41 emerging consensus, 152 emotions, 173 empirical arguments, 18 empirical psychology, 80 empty signifiers: rights as, 52 universality as, 49–50 empty universalism, 41 empty universality, 50–52 endorsement: margin of appreciation ECtHR, 27 enemies of humanity, 93 enforcement: Convention rights, 175 ECHR, see European Convention on Human Rights law, 170 legal norms, 75–76 rights, 101 equality, 105 Estevez v Spain, 135 ethics of ends, 105 ethics of virtue, 9, 109 ethnic minorities, 23, 44 ethnic nationalism, 22 ethnic origin discrimination, 23 ethnic particularism, 44

Index 189 ethnic tensions, historic, 23 ethnicity as opaque category, 25 EU (European Union), 107 Eurocentrism, 37, 42, 43 European Consensus, 6 European Convention on Human Rights (ECHR), 2–15 application process, 172 constitutional principles, 29 Contracting States’ obligations, 58 Convention rights, see Convention rights culture relevance, 31–34 democracy principle, 29 design, tension inherent in, 179 enforcement: Contracting States, 85 resource-bounded, 78–84 shared responsibilities, 85 EU incorporation, 107 evolutive interpretation, 48 interpretation, 29, 172–73 legal norms priority, 92 as living instrument, 47, 155 margin of appreciation: endorsement, 27 in preamble, 55 meaning of text of, ECtHR adjudication of, 171 moral reading of, 79 as multi-party regional treaty, 175 national plurality, 21 negative obligations of Contracting States, 58 normative framework, 172, 174 pan-national plurality, 21 as partial constitutional order, 175 positive obligations of Contracting States, 58–59 primary constitutional principles, 29 priority to Convention rights principle, 29 priority to rights conception, 173 proportionality principle, 29–30 public interest, 29 qualified rights, 129 religion’s place in, 146 scope of rights expanded, 155 second order reasoning, 30 secondary constitutional principles, 29 text as crucial source of law, 130 underenforcement, 71–73 explaining, 78–84 institutional considerations, 74–78 justifying, 84–88 legitimacy, 87–88 normative institutional considerations, 84–88 shared responsibilities, 84–86 subsidiarity, 86–87

European Court of Human Rights (ECtHR), 1–15 author of text of judicial decisions, 171 case law, 171 clashes between human rights, see clashes between human rights collaboration with national authorities, 175 comparative method on consensus, 152–54 Contracting States and, cooperation between, 58 Contracting States, obligations to protect Convention rights, 172–73 Convention rights definition, 30 creation by states, 171 decision-making authority, 133 discursive aspect, 177 dynamic approach to ECHR, 172 ECHR enforcement, 85 fundamental rights notion, 172 interpretation of ECHR, 170 jurisprudence: ambiguity of universal human rights, 174 pillars of, 172–73 religious rights, 149–52 legitimacy, 87–88 margin of appreciation, see margin of appreciation minimum legitimation for, 91 national latitude, 130–31 neutrality in relation to religions, 150 official doctrine, 170 as pan-European point of authority, 170 politics of, 130 power to protect human rights, 171 priority cases, 83 as resource-bounded institutional agent, 79 resource-bounded rationality, 78 role subsidiary to national protection system, 174 subsidiarity, 62 European cultures, 42 European human rights and the universal, 37–41 European states: multiculturalism, 25 European Union, 107 evaluation, 4 Evans v UK, 62, 63 evolution approach to Convention rights interpretation, 49 evolution as outcome of political contestation, 48 evolution of human rights, 97–99 evolutionary character of human rights, 95 evolutive interpretation of ECHR, 48 evolving consensus, 133–44 Eweida and Others v UK, 155, 157 excluded reasons, 126 experience, political, 15

190  Index expression: freedom of, 143 culture and, 32 political, 67 of universal human essence, 42 Fáber v Hungary, 65, 68 factual sense of monoculturalism, 22 factual sense of multiculturalism, 22 fair balance, religious rights, 154–58, 166 fair trial, 30, 32 faith schools, state-funded, 25 Fallon, Richard, 74 false universalism of the West, 43 family life, 32, 135–37, 160–64 family members, restrictions on joining, 26 Fernandez-Martinez v Spain, 158–66 finitary predicament, 79 First World War, 22 Fish, Stanley, 104–106 flexible meaning of rights, 9 Føllesdal, Andreas, 86 force and law, 101–104 formalism, 51 intellectual, 105 fragmentation: of human rights, 101 social, 110 fragmented contemporary societies, 49 frames of reference, Convention rights, 177 Framework Convention for the Protection of National Minorities (1995), 24–25 France: Islamic female headwear, 32–33 liberal nationalism, 43 public sphere universalism, 42–43 revolution, 46 universalistic secularism, 42 Fredman, Sandra, 138 free elections, 116 free speech, 105–106 freedom of expression, see expression freedom of religion, see religion freedoms, 2–3 freedom’s law, 93 freedoms of others, 21 Fretté v France, 62–63, 134 friction between rights, 21 Frodl v Austria, 118 functional differentiation, 109–10 fundamental rights, 3 notion, ECtHR, 172 political protection of, 126 fundamentalism, human rights, 100 The Future of Human Rights (Baxi, 2006), 51 gay marriage, 26, 32 gay sex decriminalisation, 32

general principles, power turning into, 100 general public, democratic knowledge, 108 general questions, 126 general will of the people, 98 generalisation, power, 100 The Gentle Civilizer of Nations (Koskenniemi, 2002), 51 Giniewski v France, 141 global legal order, 97 global level, universal human rights, 20 global positive law, 97 global society, legal system, 97 globalised society, 110 glocalisation, 25 God, 41–42 golden mean, 96 governments versus courts, 119 Grandrath v Germany, 152–53 Greens and MT v UK, 118 Greer, Steven, 173 group-differentiated minorities, 25–26 Habermas, Jürgen, 95, 99–100, 102, 177–78 Handyside v UK, 3–4, 34, 113, 140–41 heads of state, rights to reputation, 67 health, 21 hegemonic universalism, 41, 49–52 hegemony, struggle for, 50 heterarchical normative structure, 175 hierarchies, interrelated, 175 Hirst test, 117–18 historic ethnic tensions, 23 historical-constitutional traditions, 151 historical diversity, 92 history, national, courses and tests in, 26 Hobbes, Thomas, 101–104 home, respect for, 32 horizontalisation, social, 110 humanity, 93 crimes against, 96 membership of, 38 Hunt, Lynn, 46–48 ICCPR (International Covenant on Civil and Political Rights 1966), 23 ideal enforcers, 79 idealisation, 79–81 idealism, revolutionary, 105 identity politics, 23, 45 ideologies: plurality of, 173 politics of, 23 immigration, 23 impartiality of states, religion, 149–50 imperialism, 42–43 implementation discretion, Convention rights, 29 inalienable rights, 94

Index 191 incarnation, 41–43 incoherence: of Court’s use of margin of appreciation, 56 margin of appreciation, 39 incomplete universality, 46 inconsistency: of Court’s use of margin of appreciation, 56 margin of appreciation, 39 indeterminacy, 12–13, 39 indigenous cultures, 20 individual applications mechanism, 3 individual human rights, 26–27 individual rights, universal, 22–23 individual wills of citizens, 98 individuals: applications lodging, 181 constitutional rights, 98 equality of respect for, 19 norms binding, 177 political society and, relationship between, 97 protection, 173 religious beliefs publication or declaration, 151 indivisibility of human rights, 65 inhuman treatment or punishment, prohibitions, 31 inner logic of human rights, 46 institutional analysis, rights, 96 institutional considerations: ECHR underenforcement, 74–78 institutional division of labour, 76 institutional justice, 110 institutional role of Court, 8–9 institutions, 21 instrumentalisation of law, 100 integration, 25 integrity, territorial, 21 intellectual formalism, 105 inter-systemic communication: between power and legality, 102 interdependence, systemic, 100 interests: competing, 174, 179 plurality of, 173 public, see public interests internal structures: Council of Europe, 106–107 international constitutionalism, 97 International Convention of the Elimination of All Forms of Racial Discrimination (1996), 23 International Covenant on Civil and Political Rights 1966 (ICCPR), 23 international covenants: rights codified by, 95 international human rights law: as transcendent source of normative value, 38 international legal level: universal human rights, 20

international organisations, 104 interpretation: Convention rights, 31 ECHR, 170, 172–73 evolutive of ECHR, 48 principles, European Convention on Human Rights, 29 interpretive tool, margin of appreciation as, 91 interstitial legislators, 132, 143 intra-systemic communication within legal system, 99 Inventing Human Rights (Lynn Hunt, 2007), 46–47 the invisible: rendering visible, 181 Ireland v UK, 4 Islam, 19 Islamic face veils, 33–34 Islamic female headwear, 32–33 Italy, 32, 137 iustitia commutativa, 110 iustitia distributiva, 110 James and Others v UK, 71–72, 76–77, 79, 82 JCHR (Joint Committee on Human Rights), 121 Jehovah’s Witnesses of Moscow v Russia, 151 Joas, Hans, 48–49 Joint Committee on Human Rights (JCHR), 121 journalistic speech, 142–43 judges: creativity, 132–33 as interstitial legislators, 132, 143 law reform, 133 judicial affirmation: individual human rights, 26–27 judicial bodies: legislative bodies and, power separation between, 99 judicial capacity, 83–84 judicial decision-making, 81, 132–33 judicial decisions: ECtHR author of text of, 171 judicial dynamism: progressive, 47–48 unilinear, 47–48 judicial protection of human rights, 26–27 juridification of politics, 100 jurisdictional competence, 112 jurisprudence, see European Court of Human Rights jurisprudential diversity, 92 jurisprudential triviality of margin of appreciation, 90–91 justice, 51 commutative, 109 constitutional, 100 as difference, 110 distributive, 110

192  Index impossibility of, 109–10 institutional, 110 as responsiveness, 110 substantive, abandonment of, 110 theory of, 94 universal, 103 virtue of, 109 justification: ECHR underenforcement, 84–88 margin of appreciation, 131–32 Kant, Immanuel, 51 Karaahmed v Bulgaria, 155 Karner v Austria, 134 Khomeini, Ayatollah, 105 Kimlya and Others v Russia, 151 kin states, 22 knowledge: democratic and doctrinal, legitimation conflict between, 108 Koopman, Colin, 46 Koskenniemi, Martti, 51–52 Kymlicka, W, 25–26 labour, institutional division of, 76 Laclau, Ernesto, 7, 37, 40, 41, 44, 49–52 Ladele case, 157 language, 20 discrimination, 23 human rights, 24 legal, new and sophisticated, 180–81 minority, 25 national, courses and tests in, 26 Laskey, Jaggard, and Brown v UK, 134–35 Laughlin, Martin, 130 Lautsi v Italy, 148, 154–55 law: adjudication, 170 administrative, 90 authority and foundation paradox, 98 centre from which produced, 170 constitutional, 90 enforcement, 170 force and, 101–104 global positive, 97 instrumentalisation of, 100 morality separation from, 99 neutrality, 104 positive see positive law propositions of law, 75 public, private contestations of power, 100 reform, judges, 133 semantic of rights in, 93–96 sources of, see sources of law legal actors: domestic versus supranational, 119 legal argumentation, 103

legal balance: between cultural limitations and universal aspirations, 91 legal considerations, 10 legal constitutionalism: prisoners’ voting rights, 119–22 legal doctrine, force and limits, 101–104 legal experts, doctrinal knowledge, 108 legal factors: margin of appreciation, 130, 133, 138, 143 legal interpretation, 95, 104 legal interventions to social environment, 98 legal language, new and sophisticated, 180–81 legal norms: as abstract entities, 74 application, 74–78 concretisation, shared scheme of, 76 ECHR priority, 92 enforcement, 75–76 existence, 74–75 formulation, 74 implementation, 74 meaning, 74 underenforcement of, 72 legal power, 133 legal process of claiming rights, 50 legal registers, 177 legal system: global society, 97 intra-systemic communication within, 99 legality, 96, 99, 101 power and: inter-systemic communication between, 102 systemic interdependence between, 100 self-validation of, 102 supranational, 108 Legg, A, 30–31 legislation, national, 170 legislative bodies: judicial bodies and, power separation between, 99 legislators: bright-line rules, 67–68 clashes between human rights, roles in minimising effects of, 66 legitimacy, 96, 98–99, 101, 177 democratic, 31, 88 ECHR underenforcement, 87–88 ECtHR, 87–88 political power, 99 legitimate aims, 117 legitimation: conflicts, 108 human rights, 100 minimum for ECtHR, 91 Leyla Şahin v Turkey, 32–33, 148–49, 154 liberal democracy, 98

Index 193 liberal nationalism, France, 43 liberal principles, 95 liberal theories, Convention rights, 78 liberty, rights to, 19 life, rights to, 19 limitations, cognitive, 80 limitative legislation, 123, 125–26 limited views of constitutionalism, 119 Lindberg, Susanna, 37 linear universality, 47 linguistic minorities, 23, 25 living instrument: approach to Convention rights interpretation, 49 ECHR as, 47 living together principle, 33 local preferences, values transcending, 174 logic: of human rights, 46 of incarnation, 41 of pure particularism, 44–45 Luhmann, Niklas, 102 Lustig-Prean and Beckett v UK, 134 Macdonald, Ronald St J, 62, 130, 131–33, 139, 141, 143–44 Magyar Keresztény Mennonita Egyház and Others v Hungary, 151 Mahoney, P, 129, 142 majority cultures, 23 Malloy, TE, 25 Manas, JE, 25 Marckx v Belgium, 4 margin of appreciation (MoA), 1–15, 17–18, 21, 55 affirmative normative role, 39 approaches to, 130–33 Benvenisti’s critique, 38–40 a certain, 141 clashes between human rights, see clashes between human rights conceptual interpretive challenges, 28–30 consensus and, 129–44 constitutional interpretive challenges, 28–30 of Contracting States, 59–62 Convention rights applied under, 176 within Council of Europe, 92 creation, 27 as culturally relativist challenge to the universal, 40 culture and, 31–34 deficiencies in use, 62–63 definition, scholarly attempts at, 57 deliberative model, 178 different reasons in, 106–108 discretionary power, exercise of, 89, 92–93 as a doctrine, 89 doctrine under ECHR, 27–31

ECHR endorsement, 27 in ECHR preamble, 55 endorsement, 27 features, 28 human rights as relations, 180 incoherence, 39, 56 inconsistency, 39, 56 indeterminacy, 39 as interpretive tool, 91 jurisprudential triviality of, 90–91 justification, 28, 131, 132 legal factors, 130, 133, 138, 143 mediating value pluralism, 39 morally contentious expression, 140–44 narrow, 4, 64–65, 137 in normative light, 40 normative rationale insufficiently developed, 39 pluralistic approach, 91 political factors, 130, 133, 138, 139, 142, 143 in political light, 40 pragmatic factors, 131, 133, 139, 143 principled factors, 130, 131–32 proportionality analysis, 31, 112–14, 116–18, 122–26, 127–28 reasonable differences in, 106–108 as relational doctrine, 108 religious rights, 145–46 case study, Fernandez-Martinez v Spain, 158–66 conclusion, 166–68 consensus role, 152–54 critiques of application, 154 fair balance, 154–58, 166 human rights and religion, 146–49 jurisprudence of ECtHR, 149–52 place of religion in ECHR, 146 respect, 132 rule of law, violence to, 39 same-sex partnerships, 129, 133–39 second order reasoning, 31 sexuality, 129, 133–39 social order, 181 social sensitivity and, 129–44 strong version, 112–13 subsidiarity principle and, 57–58 tension in Convention design, 179 as underenforcement doctrine, 71–88 universality of human rights, threat to, 39 weak version, 112, 113–14 wide, see wide margin of appreciation width, 28 market economy, 98 marriage, 135, 136 culture and, 34 gay, 26 Mathieu-Mohin and Clerfayt v Belgium, 116–17 McFarlane case, 157

194  Index meaning: new worlds of, 99 negotiations of, 90 means, human rights as, 172–76 mechanism of individual applications, 3 mediating value pluralism: margin of appreciation, 39 Member States, see Contracting States Metropolitan Church of Bessarabia and Others v Moldova, 150 military service: conscientious objection to, 152–53 minorities: collective rights for, 26 educational representation, 25 ethnic, 23, 44 group-differentiated, 25–26 linguistic, 23, 25 public institutional representation, 25 racial, 25, 44 religious, 25 rights not available to majorities, 25 sexual, 44 workforce representation, 25 minority cultures, 23 minority languages, 25 minority rights, 21–7 MoA, see margin of appreciation mobile universality, 47 modern political society, 97 modern states, 97 modernist dream of universality, 45 modernist universalism, 41–44 modernity, pseudouniversalisms of, 43 monoculturalism, 22 moral prejudice, 102 moral reading of ECHR, 79 moral registers, 177 moral sensitivity, 132 morality: of norms, 9, 109 profound moral views, 157 public, semantic of rights in, 93–96 separation from law, 99 standards, 132 morally contentious expression, 140–44 morally universal principles, 95 morals, 21 questions about, 157 see also preceding entries motivational capacities, 79 Mouffe, Chantal, 51 Moyn, Samuel, 48 Muller v Switzerland, 132, 141, 142, 143, 144 multi-party regional treaty, ECHR as, 175 multiculturalisation of human rights, 44

multiculturalism: as appropriate paradigm for realising human rights, 25 claims of, 44 collective, 22 descriptive sense, 22 European states, 25 factual sense, 22 normative, 22, 25, 26 relativism, 21–27 sociological sense, 22 universalism, 21–27 multiple citizenship, 25 multiplicity, social structures, 96 Murphy, C, 31 Murphy v Ireland, 154–55 mutually consistent norms, institutions and processes, 21 narrow margin of appreciation, 4, 64–65, 137 nation states: politics and human rights, tension between, 174 national authorities, see Contracting States national bodies, see Contracting States: national constitutionalism, 97 national constitutions, rights codified by, 95 national cultures, 34 courses and tests in, 26 national history, courses and tests in, 26 national implementation, relative human rights, 20 national languages, courses and tests in, 26 national latitude, ECtHR, 130–31 national legislation, 170 national origin discrimination, 23 national particularism, 44 national protection system: ECtHR role subsidiary to, 174 national security, 21, 61 national self-determination, 44–45 nationalism, 22 nationality: territory and, disputes about relationships between, 23 negative obligations, 138 negotiations of meanings, 90 neoclassical economics, 79 neutrality: of ECtHR in relation to religions, 150 law, 104 of states, religion, 149–50 new legal language, 180–81 new ways of doing and being, 177 new worlds of meaning, 99 Nietzsche, Friedrich, 105 non-ideal agents, 79–80 non-ideal interpreters, 79

Index 195 non-place-bound normative standards, 40 non-universality of universality, 43 normative arguments, 18, 19 normative claims, 20, 109, 178 normative framework, 172, 174, 176–81 normative institutional considerations: ECHR underenforcement, 84–88 normative light, margin of appreciation in, 40 normative multiculturalism, 22, 25, 26 normative philosophies, 93–96 normative rationale: margin of appreciation, insufficiently developed, 39 normative self-constitution of modern political society, 97 normative sense of monoculturalism, 22 normative standards, 40 normative structure, 175 normative universalism: cultural relativism and, dispute between, 96 normative value: international human rights law as transcendent source of, 38 normative world of principle, 171 norms, 6, 13 binding individuals, 177 competing, 21 morality of, 9, 109 mutually consistent, 21 plurality, 21 oaths of allegiance, 26 objectivist theories, Convention rights, 78 obscenity, 142 Odièvre v France, 62–63 official doctrine, ECtHR, 170 Ojakangas, Mika, 37 Oliari v Italy, 135, 137–38 ontological supremacy of human rights, 12 opaque category, cultures as, 25 open society, 93 operations, 103 Organisation for Security and Cooperation in Europe (OSCE), 24 orientalism, 37 Orthodox Christianity, 19–20 OSCE (Organisation for Security and Cooperation in Europe), 24 others, freedoms and rights, 21 Otto-Preminger-Institut v Austria, 67, 140–42, 155 ‘ought-implies-can’ constraint, 80 outsourcing of decision-making, 81–82 over-inclusiveness argument based on rule of law, 124 overlapping consensus, 102, 109 overlapping cultures, 20

Palomo Sánchez and Others v Spain, 83 pan-European point of authority, ECtHR as, 170 paradoxes of human rights, 97–99, 169–84 Parekh, B, 26 parliamentary sovereignty, 120–21 partial constitutional order, ECHR as, 175 particular group claims, 47 particularisation of human rights, 101 particularism, 37 difference and, 49 ethnic, 44 limits and return of the universal, 44–49 national, 44 proliferation, 44 pure, 40, 44–49 racial, 44 sexual, 44 travails of, 50 universal representation and, 49 particularistic totalitarianism, 45 particularity, 113 universality and: empty signifiers mediating gap between, 52 non-relationship between, 41 relationship between, 40, 41, 49 struggle between, 42 see also particularism partisan world of politics, 171 patriarchal political projects, 43 the people: general will, 98 persuasion methods, 103 Philips, A, 24 Phull v France, 157–58 plural contemporary societies, 49 pluralism, 5, 6, 12, 141 constitutional, 21, 107 religious, 149 pluralistic approach to margin of appreciation, 91 plurality, 12, 21, 173 Polinyces, 179 political affirmation: individual human rights, 26–27 political balance: between cultural limitations and universal aspirations and, 91 political communities: shared understanding and consensus of, 174 political considerations, 10 political constitutionalism, 90, 97–98, 119–22, 126–27 political constitutions, 95 political contestation, 48, 50 political controversies, 91 political cultures, 33 political decision-making, 96, 99, 133 political democracy, 2

196  Index political diversity, 92 political experience, 15 political factors: margin of appreciation, 130, 133, 138, 139, 142, 143 political formations, universality and, 42 political freedom of expression, 67 political interventions to social environment, 98 political light, margin of appreciation in, 40 political or other opinion discrimination, 23 political power, 133 competitive struggle for, 130 filters, rights, 98 legitimacy, 99 state as organisation of, 100 political prejudice, 102 political process of claiming rights, 50 political projection, 37 political projects, patriarchal, 43 political protection: fundamental rights, 126 individual human rights, 26–27 political registers, 177 political segmentation, 107 political society, 97 political violence, 105 political visions: plurality of, 173 political will, 178 politically neutral principles, 95 politicians, rights to reputation, 67 politics, 6 adhoccery of, 105 as competitive struggle for power, 130 democratic, as forms of expression, 177 of democratisation, 25 of ECtHR, 130 human rights and, tension between, 174 of human rights, depoliticised, 48 of identity, 23 of ideology, 23 of integration, 25 juridification of, 100 market economy impact on, 98 partisan world of, 171 positive law and, inter-systemic contacts between, 99 public policy choice between multiculturalism and post-multiculturalism, 27 of pure particularism, 40 semantic of rights in, 93–96 as universalisation of the particular, 104 see also entries beginning with political polycontextural society, 110 polyethnic states, 26 polytheistic society, 110 popular sovereignty, 98, 178

positive law: politics and, inter-systemic contacts between, 99 system of, 103 positive obligations, 138 positivism, 74 post-foundationalist conception of universality, 50 post-multiculturalism, 26 power: abstraction, 100 abuse of, Contracting States, 67 competitive struggle for, 130 constellations, human rights as, 99–101 constituent, 98 constituted, 98 decision-making, distribution of, 86 discretionary, see discretionary power general principles, turning into, 100 generalisation, 100 legal, 133 legality and: inter-systemic communication between, 102 systemic interdependence between, 100 political, see political power to protect human rights, ECtHR and Contracting States, 171 public law private contestations of, 100 separation between legislative and judicial bodies, 99 separation of, 87 state, 133 ‘practical and effective’ doctrine, 4 pragmatic character of human rights, 95 pragmatic factors: margin of appreciation, 131, 133, 139, 143 pragmatics, universal, 95 precise questions, 126 preferential treatment of one religion, 152 prejudice, 102 ‘prescribed by law’ tests, 21 primary constitutional principles: European Convention on Human Rights, 29 principle, normative world of, 171 principle of proportionality, see proportionality principle of subsidiarity, see subsidiarity principled considerations, 10 principled factors: margin of appreciation, 130–32 priority cases, ECtHR, 83 priority principle, 65–66 Convention rights, 29 ECHR legal norms, 92 priority to rights conception, ECHR, 173

Index 197 prisoners: disenfranchisement, 111–12, 114–16, 118, 120–28 voting rights, 111–12 Hirst case, 112, 114–27 legal or political constitutionalism, 119–22 reasoning, 126–28 trivialising, 122–26 private life, 137 respect for, 32, 160–64 privileged agents of history, 41–42 procedural proportionality reviews, 122 procedural republic, 93 processes, 21 progress as outcome of political contestation, 48 progressive judicial dynamism, 47–48 progressive universality, 47 prohibition by law discrimination, 23 proliferation, particularism, 44 proper purpose stage, proportionality reviews, 125–26 property discrimination, 23 property rights, 71–72 proportionality, 9–10, 21 analysis, prisoner’s voting rights, 112–14, 116–18, 122–28 principle: European Convention on Human Rights, 29, 30 margin of appreciation dependency on, 31 religion, 150, 160, 161, 164, 166 reviews, proper purpose stage, 125–26 propositions of law, 75 protection against discrimination, 23 protection of minority rights, 24 protection of reputation or rights of others, 21 Protestant Christianity, 19–20 Prozorov, Sergei, 37 pseudouniversalisms of modernity, 43 psychology, empirical, 80 public institutional representation of minorities, 25 public interests: Contracting States, better knowledge of, 91 European Convention on Human Rights, 29 human rights priority over, 65–66 property rights and, 71–72, 76–77 religion, 158 rights and, friction between, 21 public law, private contestations of power, 100 public life, national, courses and tests in, 26 public morality, semantic of rights in, 93–96 public order, 161 public policy choice between multiculturalism and post-multiculturalism, 27 public safety, 157–58

public sphere, 93 universalism, France, 42–43 pure particularism, 40, 44–49 qualified rights, ECHR, 129 questions: in proportionality reviews, 126 rights, 94 race discrimination, 23 racial minorities, 25, 44 racial particularism, 44 Rancière, Jacques, 177 rational choice theory, 79 rationality: bounded, 79–80, 85 economic, 98 Rawls, John, 94, 102, 109 realisation of human rights, 11–12 reasonable differences in margin of appreciation, 106–108 reasonableness, 77, 78, 79, 122–23 reasoning: prisoners’ voting rights, 126–28 strategies, 80, 81 reasons, excluded, 126 recognition, 177 religion, 151 reconstruction of human rights, 44 redefinition of universality, 46 reference, frames of, Convention rights, 177 reformation of human rights, 44 regional cultures, 34 regional implementation: relative human rights, 20 registers, 177 rejection of universalism, 49 relational doctrine: margin of appreciation as, 108 relative human rights, 20 relative universality of human rights, 18–21 relativism, 17–18, 45, 73, 78 conceptual arguments, 18 conclusion, 34–36 cultural, see cultural relativism empirical arguments, 18 margin of appreciation: culture and, 31–34 doctrine under ECHR, 27–31 minority rights, 21–7 multiculturalism, 21–27 normative arguments, 18, 19 relative universality of human rights, 18–21 theories, Convention rights, 78 relativity of human rights, 6–7 religion, 140–42 autonomous existence of religious communities, 149, 160–62, 164–66

198  Index differential treatment, 151–52 discrimination, 23 freedom of, 32, 146, 161 human rights and, 24, 146–49 interests balanced against religious rights, 157 limitation of rights, 154–55 plurality of, 173 preferential treatment of one religion, 152 proportionality, 150, 160–61, 164, 166 public interests, 158 recognition, 151 state neutrality and impartiality, 149–50 tolerance, 151, 161 trade unions within religious communities, 155–56 see also Christianity; Islam religious advertising, 154 religious beliefs, 142, 151 religious clothing, 148–49 religious discrimination, 151–52 religious minorities, 25 religious observance, 42 religious pluralism, 149 religious rights: case study, Fernandez-Martinez v Spain, 158–66 consensus role, 152–54 critiques of application, 154 fair balance, 154–58, 166 human rights and religion, 146–49 interests balanced against, 157 jurisprudence of ECtHR, 149–52 limitation of, 154–55 place of religion in ECHR, 146 religious violence, 105 Representation of the People Act 1983: 114, 117–18 republicanism, 25 reputation, rights to, 67 resource-bounded enforcement, ECHR, 78–84 resource-bounded institutional agent, ECtHR as, 79 resource-bounded models, decision-making, 81 resource-bounded rationality, ECtHR, 78 resource-boundedness, 80–81, 84, 85 resource-dependence, 80, 81 resource-relativity, 80 resources, cognitive, 79, 81 respect, 105 for individuals, 19 margin of appreciation, 132 responsiveness, justice as, 110 rethinking universality, 45 retrospective criminalisation, 32 return of universalism, 45 revelation, universality occurrence through, 41–42

revolution: France, 46 rights, 95, 100 revolutionary idealism, 105 rights, 2–3 claiming, 50, 52 codified, 95 conflicting, 160 constitutional, 100 constitutional review of, 119 dignity-based, 178 doctrines of, 95 economic, 101 as empty signifiers, 52 enforcement, 101 flexible meaning, 9 friction between, 21 inalienable, 94 international covenants, codified by, 95 legal interpretations, 95 of Man, 46 national constitutions, codified by, 95 not to be discriminated against, 23 others, 21 political power filters, 98 public interests and, friction between, 21 questions, 94 revolution, 95, 100 semantics of, 93–96, 109–10 social, 101 social systemic and institutional analysis, 96 subjective, 100 substantive, dignity-based, 178 theory of, 93–96 transcendental sources, 94 universality of, 90, 92, 109 utilitarian positivistic theories of, 94 variable meaning, 9 to vote, 116 see also Convention rights; fundamental rights rights-based normative claims, 96 Rousseau, Jean-Jacques, 98 rule of law, 51 margin of appreciation violence to, 39 over-inclusiveness argument based on, 124 Rushdie, Salman, 105 sad-masochistic sexual activity, 134–35 Sager, Lawrence, 72, 74 Şahin v Turkey, 148–49, 154 same-sex marriage, 135, 136 same-sex partnerships, 129, 133–39 SAS v France, 33, 153, 155 Schalk and Kopf v Austria, 135–39 Schor, Naomi, 43 Scoppola v Italy (No 3), 118, 122 seamlessly progressive approach to Convention rights interpretation, 49

Index 199 secessionism, 25 second order reasoning: European Convention on Human Rights, 30 margin of appreciation, 31 Second World War, 22 secondary constitutional principles: European Convention on Human Rights, 29 secularism, 148 security, 21, 61, 157–58 segmentation, political, 107 self-authored normative framework, human rights as, 176–81 self-defeating cultural relativism, 40 self-determination: claims, 45 national, 44–5 self-evident truths, 94 self-validation of legality, 102 semantics of rights, 93–96, 109–10 separation of powers, 87 servitude, prohibitions, 31 sex discrimination, 23 sexual minorities, 44 sexual orientations, 129 sexual particularism, 44 sexuality, 129, 133–39 shared consensus of political communities, 174 shared responsibilities, ECHR underenforcement, 84–86 shared understanding of political communities, 174 shared values, 13 Sharia courts, 25 Shia Islam, 19 shields, 56, 61, 66 Sindicatul ‘Pastorul cel Bun’ v Romania, 155–56 slavery, prohibitions, 31 Smith and Grady v UK, 134 social cohesion, 25 social cooperation, 109 social differentiation, 110 social environment, interventions to, 98 social fragmentation, 110 social horizontalisation, 110 social institutions: actual people and, unbridgeable difference between, 110 social integration, 25 social movements, 45 social order, margin of appreciation, 181 social origin discrimination, 23 social prejudice, 102 social rights, 101 social self-description of modern political society, 97 social sensitivity: margin of appreciation and, 129–44 social solidarity, 25

social structures: multiplicity, 96 operations and, relationship between, 103 unity of semantics, 96 social system theory of rights, 93–96 social systemic analysis, rights, 96 societal cultures, 33 societal dynamism of human rights, 95–96 society, 98, 110 sociological perspective of human rights, 97–99 sociological sense of monoculturalism, 22 sociological sense of multiculturalism, 22 solidarity, social, 25 solutions: compromise, 124–25 unique and universal, 177–78 Somek, Alexander, 8, 113 sophisticated legal language, 180–81 Sørensen and Rasmussen v Denmark, 64 sources of law: ECHR text as crucial, 130 paradox, 98 South Africa, 115 sovereignty: parliamentary, 120–21 popular, 98, 178 standards, 3 common, 4 Stanton, Donna, 45 state-funded faith schools, 25 states: citizens and, relationships between, 99 ECtHR creation by, 171 European, multiculturalism, 25 neutrality and impartiality, religion, 149–50 as organisation of political power, 100 power, 133 see also Contracting States, nation states strong version of margin of appreciation, 112–13 structural deference, 123–25 structures, 103 subjectification, 177 subjective rights, 100 subnational constitutionalism, 97 subsidiarity, 3 ECHR underenforcement, 86–87 ECtHR, 62 principle, 55 clashes between human rights, 57–58 cooperation between ECtHR and Contracting States, 58 margin of appreciation and, 57–58 substantive deference, 123 substantive, dignity-based rights, 178 substantive justice, abandonment of, 110 Sunday Times v UK, 4, 140, 141 Sunni Islam, 19 supervision, 3

200  Index supranational constitutionalism, 97 supranational legal actors, 119 supranational legality, 108 supranational organisations, 104 Switzerland, 32–33 systemic dynamism of human rights, 95–96 systemic interdependence between power and legality, 100 temporalised universal content of human rights, 46 temporalised universality, 47 territory: integrity, 21 nationality and, disputes about relationships between, 23 Teubner, Gunther, 99, 110 theo-logic of incarnation, 41–43 theological conception of incarnation, 41 theory of justice, 94 Theory of Justice (Rawls, 1971), 109 theory of rights, 93–96 thinkability, 46–47 Thornbill, Chris, 100 thought, freedom of, culture and, 32 time pressures, 82–83, 85 timeless normative standards, 40 tolerance, 141 religion, 151, 161 toleration, 105 torture, prohibitions, 31 totalitarianism, particularistic, 45 trade unions within religious communities, 155–56 traditions, 177 normative claims, 20 transcendental apparatus, 95 transcendental sources, rights, 94 transnational constitutionalism, 97 travails of particularism, 50 trivialising prisoners’ voting rights, 122–26 true universalism, 43 trumps, 56, 61, 66, 94, 174 trustworthiness, 87 truths, self-evident, 94 Turkey, 32–33 TV Vest As & Rogaland Pensjonistparti v Norway, 64–65 Tyrer v UK, 4, 47 Ukraine, 23 uncertainty, 85 under enforcement, ECHR, see European Convention on Human Rights unfinished universality, 46 uniform consensus, 109 unilinear judicial dynamism, 47–48 unique solutions, 177

United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 24 United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, 24 United Nations Draft Declaration on Rights of Indigenous Peoples, 24 unity, 173 universal appeal of human rights, 101 universal aspirations: cultural limitations and, legal and political balance between, 91 universal class, 42 Universal Declaration on Human Rights (1948), 23 universal human rights, 97, 169 conceptual level, 20 global level, 20 international legal level, 20 norms, 6 universal individual rights, 22–23 universal justice, 103 universal pragmatics, 95 universal representation, particularism and, 49 universal solutions, 177 universal suffrage, 117 universalisability: universalism and, distinction between, 46 universalisation of the particular, politics, 104 universalism, 6, 17–18 conceptual arguments, 18 conclusion, 34–36, 53–54 counter arguments, 19 diversity and, 20 empirical arguments, 18 empty, 41 European human rights and the universal, 37–41 hegemonic, 41, 49–52 margin of appreciation: culture and, 31–34 doctrine under ECHR, 27–31 minority rights, 21–7 modernist, 41–44 multiculturalism, 21–27 normative, 96 normative arguments, 18 particularism limits and return of the universal, 44–49 rejection, 49 relative universality of human rights, 18–21 return of, 45 true, 43 universalisability and, distinction between, 46 of West, false, 43 universalistic secularism, France, 42

Index 201 universality, 173 contestation, 46 cross-cultural, 44 cultural formations and, 42 dismantling, 43 empty, 50–52 as empty signifier, 49–50 of human rights, 6–7, 12 margin of appreciation threat to, 39 incomplete, 46 linear, 47 mobile, 47 modernist dream of, 45 non-universality of, 43 particularity and: empty signifiers mediating gap between, 52 non-relationship between, 41 relationship between, 40–41, 49 struggle between, 42 political contestation over content, 50 political formations and, 42 post-foundationalist conception of, 50 progressive, 47 redefinition, 46 rethinking, 45 revelation, occurrence through, 41–42 of rights, 90, 109 Council of Europe, 92–93 particularity of cultures and, difference between, 92 Rights of Man, 46 temporalised, 47 unfinished, 46 see also universalism utilitarian positivistic theories of rights, 94 utilitarianism, 78 validity, 74 Vallianatos v Greece, 135–37 values: communities as sources of, 19 cultures as sources of, 19

plurality of, 173 shared, 13 systems, interrelated, 175 transcending local preferences, 174 Van Drooghenbroeck, Sébastien, 59 variable meaning of rights, 9 variations, 18 violations, 18 violence, 105 virtue: ethics of, 9, 109 of justice, 109 voting: eligibility, 128 prisoners’ rights, see prisoners regulation, 128 rights, 116 weak version of, 112–14 Weber, Max, 108 welfare, 26 well-being, economic, 21 West, Cornel, 43 Western neo-liberalism: cultures protection from, 19 wide margin of appreciation, 4, 59–62, 64, 116, 131, 140, 142, 154–58 Wingrove v UK, 140, 155 workforce representation of minorities, 25 xenophobia, 45 Yourow, Howard, 130–33, 138, 143 Yugoslavia, 24 Z v Finland, 1–2 Zerilli, Linda, 45 Žižek, Slavoj, 179–80

202