Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

abandoning its institutional and ‘constitutional’ role as the external guarantor of human rights against the ‘tyranny of the majority’.167 Indeed, it may even be argued that the operation of the margin of appreciation doctrine and the very ‘balance’ metaphor that this doctrine implies are preventing the Court from playing a meaningful role in resolving majority/ minority dissensions.168 Here, it is pertinent to take heed of Sadurski’s concept of ‘democracy-plus’. This concept suggests that in order to be ‘fully legitimate’, democracy should be predicated not only on correct procedures, but also on substantive values, such as human dignity, liberty and equal concern for all.169

8.4 Recognition of cultural diversity

The substantive dimension of a margin of appreciation doctrine can also be robustly explained as an expression of the due recognition of cultural diversity among the member states. The Court’s rationale for the application of the margin of appreciation, which was marshalled in the Handyside case, has become a ‘mantra’ that, even after the lapse of several decades, provides crucial guidelines. First and foremost, the Court has recognised that certain standards of morality are neither uniform nor capable of being harmonised, and that they are not static either.170 Second, because of direct access to dynamic social forces at hand, national and local authorities are better placed to evaluate an act/omission reflecting sensitive moral and religious values. This second prong of reasoning is clearly derived from the structural/institutional dimension of subsidiarity.

When justifying the application of a margin of appreciation by invoking the deference to a cultural value in a specific society, the Court is

167Wheatley, ‘Minorities’, at 791. Note that Bruce Ackerman suggests that those who place philosophical emphasis on fundamental rights (‘rights foundationalists’, in his term), assume that democracy ought to be constrained by such commitment to protection of rights: B. Ackerman, ‘Constitutional Politics/Constitutional Law’, Yale Law Journal 99 (1989) 453–547, at 465–71.

168Wheatley, ‘Minorities’.

169W. Sadurski, ‘Law’s Legitimacy and “Democracy-Plus”’, Oxford Journal of Legal Studies 26 (2006) 377, at 377. Compare Ronald Dworkin’s argument that democracy is an ‘interpretive’ concept and must, however, be guided and constrained by the ‘nonnegotiable’ principle of treating all subjects with ‘equal concern’: R. Dworkin, ‘Do Values Conflict? A Hedgehog’s Approach’, Arizona Law Review 43 (2001) 251, at 254–5 and 259.

170Arai-Takahashi, ‘The Margin of Appreciation’, at 206–8.

considered to endorse an overarching, ‘ethical decentralizing’171 rationale against the conformist trend.172 In such judicial thinking, the idea of cultural diversity is recognised as among essential social goods in human rights decision-making. This helps assure the national authorities that a normative objective contemplated in each of the Convention rights can be attained without entailing strict uniform standards.173

The consistent jurisprudence suggests that the Court has shown a greater inclination to a restrained approach when ascertaining issues of morality understood in a broad sense, including the questions of obscenity and sexual propriety.174 The deferential stance has also been upheld in cases where the Court has been asked to demarcate the conceptual parameters of free speech against the competing interest in safeguarding the freedom of religion.175 Similarly, the national authorities may be given latitudes of discretion in delineating what they perceive as appropriate conceptual boundaries of such intrinsic notions as privacy and family life that are set against the freedom of the press.176

Deference to national cultural policies as a rationale for the margin of appreciation can be corroborated not least in educational matters, the area that epitomises how to make a coherent explication of abundant forces of distinct local values. The fact that national education curricula devote a large proportion of time to knowledge of locally dominant

171Sweeney, ‘Margins of Appreciation’, at 472–4.

172See, for instance, Mahoney, ‘Marvellous Richness of Diversity’; and Sweeney, ‘Margins of Appreciation’. Compare C. Nowlin, ‘The Protection of Morals under the European Convention for the Protection of Human Rights and Fundamental Freedoms’, Human Rights Quarterly 24 (2002) 264–86.

173Greer, ‘Constitutionalising Adjudication’, at 409; and Shany, ‘Toward a General Margin of Appreciation Doctrine’.

174See, for instance, ECtHR, Wingrove v. United Kingdom (Appl. No. 17419/90), Judgment (Chamber), 25 November 1996, Reports 1996-V; ECommHR, Geerks v. Switzerland (Appl. No. 7640/76), Decision (Commission), 7 March 1978, 12 Decisions and Reports 103 (friendly settlement, Commission’s Report of 4 May 1979, 16 DR 56); and ECommHR, Gay News Ltd. and Lemon v. UK (Appl. No. 8710/79), Decision (Commission), 7 May 1982, 5 EHRR 123.

175ECtHR, Otto-Preminger-Institut v. Austria (Appl. No. 13470/87), Judgment (Chamber), 20 September 1994, Series A, No. 295-A.

176Publishing photographs and images containing intimate private aspects of individuals or their family is a serious affront to their right to good reputation, honour and privacy: ECtHR, Von Hannover v. Germany (Appl. No. 59320/00), Judgment (Third Section), 24 June 2004, Reports 2004-VI, para. 59; ECtHR, Von Hannover v. Germany (No. 2) (Appl. Nos. 40660 and 60641/08), Judgment (Grand Chamber), 7 February 2012, Reports 2012, paras. 82, 104–7, 126; and ECtHR, Hachette Filipacchi Associés v. France (Appl. No. 71111/01), Judgment (First Section), 14 June 2007, (2009) 49 EHRR 515, para. 42.

religion is not in itself considered to constitute indoctrination and to infringe the principles of pluralism and objectivity in breach of article 2 of Protocol No. 1. The conceptual device of a margin of appreciation is deployed to rationalise national discretion in planning and setting up educational curricula.177 However, as found in Folgerø and Others v.

Norway178 and Hasan and Eylem Zengin v. Turkey,179 in cases where the system of partial exemption from a mandatory religious class entails the risk of compelling the parents unduly to disclose intimate aspects of their own religious and philosophical convictions,180 this would upset a fair balance. It would contravene the principle that the information contained in the curriculum be conveyed in an ‘objective, critical and pluralistic’ manner as required under article 2 of Protocol No. 1.

As discussed above, the absence of European consensus over the relative importance of a particular cultural issue is a factor that may prompt the Court to widen the ambit of a national margin.181 In Lautsi

177In Folgerø and Others v. Norway, the Grand Chamber of the Court found that the fact that the syllabus of the ‘Christianity, religion and philosophy’ (KRL) module provided a larger proportion to knowledge of Christianity than to that of other religions could not in itself be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination. On this matter, the Court recognised the Norwegian margin of appreciation in regulating its educational curriculum while acknowledging its history and tradition dominated by Christianity: ECtHR, Folgerø and Others v. Norway (Appl. No. 15472/02), Judgment (Grand Chamber), 29 June 2007, Reports 2007-III, para. 89. Similarly, in Hasan and Eylem Zengin v. Turkey, where Alevist applicants complained that the Turkish syllabus for ‘religious culture and ethics’ classes gave greater prominence to knowledge of Islam, the Court recognised the Turkish authorities’ margin of appreciation in examining its educational curriculum on the ground that Islam is the majority religion practised in Turkey: ECtHR, Hasan and Eylem Zengin v. Turkey (Appl. No. 1448/04), Judgment (Second Section), 9 October 2007, not reported, para. 63.

178Folgerø and Others v. Norway. para. 102.

179Hasan and Eylem Zengin v. Turkey, para. 75. Decisive for the Court in this case to find a violation of art. 2 of Protocol No.1 was the fact that even after request for partial exemption was made, whether or not to grant such a request for exemption was subject to discretion of the relevant educational authorities.

180Folgerø and Others v. Norway, paras. 98 and 100.

181Such a general understanding is summarised by the dictum that ‘Where … there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive and ethical issues, the margin will be wider…’: S.H. and Others v. Austria, para. 94. See also ibid., para. 97; Evans v. UK, para. 77; ECtHR, Fretté v. France (Appl. No. 36515/97), Judgment (Third Section), 26 February 2002, Reports 2002-I, para. 41; A, B. and C. v. Ireland (Appl. No. 25579/05), Judgment (Grand Chamber), 16 December 2010, Reports 2010, para. 232.

and Others v. Italy, the presence of such a powerfully religious symbol as a crucifix at a state-run primary school was contested as being at odds with both the requirement of secularism, and rights of pupils and their parents to entertain different religious and philosophical beliefs and convictions.182 In that case, the Grand Chamber was adamant that the absence of European consensus would justify its judicial self-restraint and its deference to what the Italian government pleaded as a manifestation of a community’s deeply-rooted Catholic values.183

In some cases, the Court has gone to the length of considering cultural justifications as sufficiently potent to dilute the solidly established methodology based on European consensus and to rebuff the need for evolutive interpretation. In A, B and C v. Ireland, where highly sensitive issues of abortion were at stake, the Court held:

…even if it appears from the national laws … that most Contracting Parties may in their legislation have resolved those conflicting rights and interests [conflicting rights of the mother and of foetuses] in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Court’s examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention.184

When invoked, the notion of a margin of appreciation can be viewed as a metaphor that funnels into the ‘constitutional’ discourse a more profound, cultural dialogue about the implications of international human rights on different national societies, and on their identities and cultural values. In other words, the variable parameters of the margin are the reserved domain of Kulturkampf in which quest for culturally specific

182Lautsi and Others v. Italy (Appl. No. 30814/06), Judgment (Grand Chamber), 18 March 2011, Reports 2011, paras. 68–70 and 76.

183The Italian government submitted as follows: ‘That presence [the presence of crucifixes] was the expression of a “national particularity”, characterised notably by close relations between the State, the people and Catholicism attributable to the historical, cultural and territorial development of Italy and to a deeply rooted and long-standing attachment to the values of Catholicism. Keeping crucifixes in schools was therefore a matter of preserving a centuries-old tradition.’ Lautsi and Others v. Italy, para. 36.

184A, B and C. v. Ireland, para. 237, emphasis added. For the same line of argument deployed not in cultural matters, but in social and economic policy areas, see the case disputing disenfranchisement of a prisoner under art. 3 of the First Protocol: Hirst v. UK (No. 2), para. 81 (albeit the Court finding a violation of this provision due to a blanket nature of restrictions on all convicted prisoners, irrespective of the length of their sentence and gravity of their offences).

and socially contextualised understanding of ECHR standards is still cognisable.185 It is in this line of reasoning that the most cogent and sustainable application of the margin of appreciation can be defended. As a caveat, one might argue that the Court’s deference to the cultural (and religious) tradition prevalent among the majority of the local society can be contrasted to its relatively curt treatment of issues that are reflective of a minority group’s distinct cultural values.186

It may be argued that the very idea of human rights as such already entails and articulates a degree of cultural pluralism and diversity in society.187 In Schalk and Kopf v. Austria, which involved denial of the right of marriage to a same-sex couple, the Court held that:

marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society…188

In that specific case, admittedly, the Court seems to retreat evasively into the thinly disguised veneer of cultural relativism.189 Even so, the least that

185For this discussion in respect of the principle of subsidiarity, see Carozza, ‘Subsidiarity’, at 79.

186See, for instance, Cha’are Shalom Ve Tsedek v. France (Appl. No. 27417/95), Judgment (Grand Chamber), 27 June 2000, Reports 2000-VII (refusal to grant the applicant association an approval to authorise its ritual slaughterers to perform ritual slaughter to get ‘glatt’ meat, in contrast to another Jewish association that received such an approval and to which the vast majority of the observing Jewish population in France were affiliated).

187Carozza, ‘Subsidiarity’, at 47.

188Schalk and Kopf v. Austria, para. 62. See also ibid., paras. 108–9 (complaint under arts. 14 and 8); but contra, the Joint Dissenting Opinions of Judges Rozakis, Spielmann and Jebens (finding a violation under arts. 14 and 8). Compare B and L v. UK (Appl. No. 36536/02), Judgment (Fourth Section), 13 September 2005 (ban on parents-in-law marrying children-in-law, unless both outlive their former spouses), paras. 31–3 (the government’s reliance on moral arguments) and paras. 36–40 (the Court recognising the subsidiary principle in view of the ‘divided’ nature of the question of a marriage of a close degree of affinity, but finding inconsistency of the stated aims of the ban in question and the waiver applicable in some cases).

189The above-quoted argument seems less persuasive than the frank admission that judicial interpretation, even by way of teleological strategy, finds it hard to surmount the clear textual meaning (unlike art. 9 of the Charter of the Fundamental Rights of the European Union, which avoids any reference to men and women, art. 12 ECHR expressly mentions a union of opposite sex). This was the first line of reasoning provided by the Court in Schalk and Kopf v. Austria, 129, para. 60.

this dictum demonstrates is the potency of the culture-based arguments in human rights decision-making.

Embedded consciousness of cultural diversity is borne out by the Court’s repeated emphasis on the principle of ‘pluralism, tolerance and broadmindedness’,190 and on its affiliated notion of religious pluralism and democracy.191 In this sphere, one may contend that the margin of appreciation, as interpretive leeway given to local decision-making agents, serves as a more nuanced but sensible conceptual device than a politically charged rhetoric of cultural relativism in ascertaining legitimacy of applying human rights constructs in culturally enriched Europe.192 If invoked, the idea of cultural relativism might ‘ensnare’ the Court into the most deferential standard of review. At least on a level of perception among citizens, the Court’s failure to tap into the capacity to make a non-reviewable judgment would detract from its role as the final and authoritative arbiter of all human rights decisions in Europe.193

8.5The rejection of cultural values: a harmonisation

approach reinstated

In contrast, it ought to be noted that even if demands of specific cultural values are in issue, the Court does not compromise what it conceives as

190It is crucial to recall the ‘classic’ Handyside case, in which this principle was explained as follows:

Subject to paragraph 2 of article 10, it [freedom of expression] is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.

191ECtHR, Handyside v. UK, para. 49. See also Refah partisi (The Welfare Party) and Others v. Turkey, para. 89; and United Communist Party of Turkey and Others v. Turkey (Appl. No. 19392/92), Judgment (Grand Chamber), 30 January 1998, Reports 1998-I, paras. 42–3. ECtHR, Refah partisi (The Welfare Party) and Others v. Turkey, para. 90. See also

Kokkinakis v. Greece (Appl. No. 14307/88), Judgment (Chamber), 25 May 1993, Series A, Vol. 260-A, para. 31; and Buscarini and Others v. San Marino (Appl. No. 24645/94), Judgment (Grand Chamber), 18 February 1999, Reports 1999-I, para. 34. See also the Framework Convention on the Protection of National Minorities, preamble and art. 6(1).

192Carozza, ‘Subsidiarity’, at 62.

193See Dworkin’s second ‘weak sense’ of discretion: Dworkin, Taking Rights Seriously, at 31–4, 68–71 and 327–30. See also, W. Lucy, ‘Adjudication’, in Coleman and Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law, 206–67, at 215.

foundational principles underpinning the normative backbone of the ECHR. Indeed, in such cases, the Court does not hesitate to reject outright deference to cultural diversity.

For instance, in the Refah Partisi case, the Court rebuked the introduction of the sharia law as being irreconcilable with the primordial principles of gender equality and secularism.194 Similarly, in Dahlab v. Switzerland, the Court did not baulk at endorsing the Swiss Federal Court’s reasoning that wearing of an Islamic headscarf by a primary school teacher was problematic on two grounds: it was imposed only on women as a precept derived from the Koran; and that this was incompatible with gender equality and demands of tolerance and respect for others. Admittedly, in this specific case, these two rationales were given greater weight than the consideration, according to which the wearing of ‘a powerful external symbol’, such as a headscarf, might have some proselytising effect on tender minds of young pupils.195 Be that as it may, what matters most here is that the Court’s approach is clearly geared toward autonomous (and ‘objective’) pan-European standards. This is also in tune with the Human Rights Committee’s universalist premise that ‘traditional, historical, religious or cultural attitudes’ should not legitimate violations of intrinsic rights, such as women’s rights under the International Covenant on Civil and Political Rights.196

9. Conclusion

Any discourses on international human rights law necessitates intensively locating an appropriate intersection between ‘a communicable common good’ of normative standards desired to be uniformly implemented on

194The ECtHR held that: ‘… such a system [based on a plurality of legal systems including the sharia law] would undeniably infringe the principle of non-discrimination between individuals as regards their enjoyment of public freedoms, which is one of the fundamental principles of democracy. A difference in treatment between individuals in all fields of public and private law according to their religion or beliefs manifestly cannot be justified under the Convention, and more particularly article 14 thereof’: Refah partisi (The Welfare Party) and Others v. Turkey, para. 119 (confirming chamber’s Judgment of 31 July 2002, para. 70).

195Dahlab v. Switzerland (Appl. No. 42393/98), Decision (Second Section), 15 February 2001, Reports 2001-V. In the present writer’s view, it is the second and third ground that should have been considered preponderant in this case.

196HRC, General Comment No. 28: Equality of Rights between Men and Women (Article 3): 29/ 03/2000, CCPR/C/21/Rev.1/Add.10, para. 5. See also HRC, General Comment No. 31 [80]: Nature of the General Legal Obligation Imposed on States Parties to the Covenant: 26/05/2004, CCPR/C/21/Rev.1/Add.13, para. 14 (observing that a failure to abide by the obligations to comply with the ICCPR rights cannot be justified by reference to cultural considerations).

one hand, and national and local particularities fully reflected in domestic constitutional projects on the other.197 Lurking behind such an endeavour is the search for ‘an equilibrium between unity and diversity’ that would allow the formation of a common normative framework on international human rights while accommodating respect for fundamental values manifested in national constitutional decisionmaking.198

The margin of appreciation, as an interpretive doctrine that is an outcome of the Strasbourg judges’ practical reasoning, cannot function as a fixed benchmark in moral space. It can be considered a fruit of the Strasbourg judges’ process of deliberation, which is purported to optimise the protection of rights among a plethora of competing values. As such, the doctrine’s operative sphere is set against the backdrop of the need to balance between the relevant reasons for action.199

As is well known, Habermas’s model of deliberative democracy (democracy as ‘a legally mediated form of political integration’)200 is receptive of a diverse European cultural landscape. This model demands that any individual be able to flourish meaningfully in his/her private and public autonomy.201 Cohen-Eliya and Porat argue that ‘under the theory of deliberative democracy, laws and democratically reached decisions gain legitimacy only if they are the outcomes of a deliberative process, the result of a public discourse in which a public attempt is made to justify arguments and claims in terms of reason’.202 The deliberative process suggests that a construction of a common European edifice of human rights is an incremental step, while account needs to be taken of the plurality of cultural particularities. Such a gradational approach is precisely what the Court envisages when applying the doctrine of a margin of appreciation. The legal space and flexibility proffered by this doctrine allows the national authorities to engage themselves in such legitimacy-enhancing, deliberative processes in the quest for agreements over divisive issues. Set against the background of European deliberative

197I owe the term ‘communicable common good’ to Carozza, ‘Subsidiarity’, at 58, n. 118.

198For a discussion in the EU law context, see ibid., at 53.

199Pavlakos, ‘Constitutional Rights’, at 150–2.

200J. Habermas, ‘Toward a Cosmopolitan Europe’, Journal of Democracy 14 (2003) 86–100, at 97–8.

201Habermas, ‘Between Facts’, at 419.

202M. Cohen-Eliya and I. Porat, ‘Proportionality and the Culture of Justification’, American Journal of Comparative Law 59 (2011) 463–90, at 481.

democracy,203 or democracy as an ‘interpretive’ or ‘integrated’ concept of value,204 the margin of appreciation doctrine, once comprehended more than as an expedient product of practical reasoning, can help shape Habermas’s notion of a ‘normative consensus’. Its sustainable rationale resides in its capacity to facilitate the reconciliation of competing political and moral values espoused by divergent and plural national and ethnic groups, and to inculcate the moral sense for tolerating ‘others’.205

203The concept of deliberative democracy involves ‘an attempt to institutionalize discourse as far as possible as a means of public decision making’: R. Alexy, ‘Balancing, Constitutional Review, and Representation’, International Journal of Constitutional Law 3 (2005) 572, at 579. Likewise, Voyiakis highlights the importance of ‘[d]ebates genuinely focused on discovering truth’. He notes that such debates ‘resemble less a group of perspectives battling out until one of them dominates than a process of constant reformulation of each perspective in the light of the other until a mutually satisfactory equilibrium is reached….’: Voyiakis, ‘International Law’, at 76.

204R. Dworkin, ‘Hart’s Postscript and the Character of Political Philosophy’, Oxford Journal of Legal Studies 24(1) (2004) 1–37, at 9, 14–18 and 23. He postulates that the concept of legitimacy operates in a community that takes ‘integrity’ as central to politics. He asserts that ‘a general commitment to integrity expresses a concern by each for all that is sufficiently special, personal, pervasive, and egalitarian to ground communal obligations’: Dworkin, Law’s Empire, at 216.

205J. Habermas, ‘Intolerance and Discrimination’, International Journal of Constitutional Law 1 (2003) 2–12, at 3–4.