European Human Rights Model

The European Human Rights Model

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Introduction

The interpretation as well as the application of international human rights conventions has never been an easy task^[1]. Even though the international courts have been tasked with the responsibility of interpreting the international human right conventions, the function of trying to protect the human rights against possible state interference has not t been an easy one. This is despite the competence that such courts have. These international courts must always exercise great skills and expertise so as to be able to accommodate the expectations of the citizens on human right protection. This is in addition to taking into account the social settings which are ever changing and the will of the states.

 In determining and analyzing whether a member state of the Council of Europe has violated rights that are protected by the conventions, constant balancing between the human rights in the region and the state democracy is normally done. The doctrine of the margin of appreciation has been widely used in determining the human right violation cases and issues. This has been especially in areas like religious liberty and morality concerns^[2]. In doing so it has also been hoped that when legal decisions that are related to human rights protection and the Convention are being made, the prevailing conditions in the specific countries are taken into consideration. This was meant to ensure that the decisions are made with the interest of the party in question in mind so as to ensure that their rights are not violated in any way^[3].

This paper will discuss the margin of appreciation and the way the doctrine has been used among European counties. It will also outline the main characteristics of the doctrine of margin of appreciation taking into account the two versions of the doctrines and how they have had impact on human rights protection. This will be done in order to determine whether the doctrine is a legitimate tool which allows for flexibility within the European human right model or if it is just a tool that is being used by member states to protect autonomy of the states and countries.

The margin of appreciation

Since Handyside v. United Kingdom^[4], the margin of appreciation has heavily been adopted and used in the ECtHR. The purpose of this doctrine has been to grant deference to state judgments in order to protect the rights which are set out in the Convention. Various reasons for justification of the deference have been given by the court. Originally the margin of appreciation was developed in response to the concerns by the member states that the Conventions Rights would prohibit the states from implementing their state security measures. This lead to the development of this doctrine to help respond to this concern.

In order for a state to be awarded this doctrine by the ECtHR the member state should and must have reasonable relationship between the specific objectives to be achieved and how that specific objective is to be achieved through the use of the doctrine. A strict approach is normally used in awarding the doctrines. Five principles have been widely used by the ECtHR in determining whether or not to award the doctrine to a member state. These five principles that have been used by the court in determining whether to issue the doctrine to a member state are meant to ensure that the states does not use the doctrine in a way which will contravene the Convention.

The use of the doctrine has elicited different views from different quarters on the importance, validity and the impact that the doctrine has had on human right protection among member states. It has been observed that the system of human right protection in Europe is a product of division   of labour between the various member states and the ECtHR^[5] The doctrine has allowed the courts to be responsible for the protection whereas the Strasbourg court is tasked with intervening in the cases where the remedies that are available in the states have been exhausted^[6]. In areas where the is no consensus among the member states such as morality and religion, the state courts have been given the powers to deal with such issues and their views and decisions are normally accepted by the ECtHR. This is because it is argued that the states are in direct contact with the mainsprings and the social circumstances related to the human right protection issues.

Due to existence of this doctrine the ECtHR now only has the function of carting out an examination of the compatibility between state measure and the Convention provisions. In addition to that the doctrine has made necessary to review whether states have overstepped their margin of appreciation in the protecting Convention Rights. This normally entails particularized and contextual review of the challenged measures taking into consideration the internal situations in each of the states. This is in addition to considering the legal, political as well as the social circumstances in a particular country in any given context of human right violation that is in question.