PPPS: Margin of Appreciation

Hello Everyone: My name is Wally Siewert. I am currently based in Santa Barbara California. The paper I would like to discuss with you concerns the European Court of Human Rights and its application of the European Convention on Human Rights. The Convention allows individuals or groups within a signatory nation to bring before the Commission (a panel of the court’s judges) complaints alleging violations of human rights by the relevant signatory government. In general (though the court’s process has changed over the years) the commission determines whether the court will accept the case and on what basis. They clarify the complaint, the issues involved, and the articles of the Convention implicated via a preliminary finding. Based on this recommendation the court itself will then either deny or take up the complaint, in the latter case requiring the government involved to respond.

The European Court of Human Rights is by far the most effective and best-tested model of a supra-national judiciary. As such, its practices and findings will surely influence similar institutions as they become more globally accepted. One of the central lessons of the court’s history is that decisions often explicitly or implicitly involve a certain “margin of appreciation” which the court grants sovereign governments with respect to administering their own nation. For example, in the “little red schoolbook” case the court granted England the right to determine what kind of material it considered unseemly for school children somewhat independently of the court’s enforcement of the human right to freedom of speech. According to some, allowing such a margin of appreciation is a sensible recognition of diversity, to others it is inappropriately deferential to dated notions of sovereignty. Article 15 of the Convention allows that signatory nations may derogate from their obligations regarding certain (non-fundamental) human rights in times of war or national emergency.

It is my project to explore what role a “margin of appreciation” should play in considering whether a signatory nation has allowably derogated from those rights under Article 15. Should the court allow a measure of discretion to the government in adducing the existence of a national emergency or not? The question addresses an issue right at the cusp between international normative obligations created exclusively by agreement, and international obligations which owe their normative force to some substantive supra-national moral conception of human rights. I will address the issue in two ways. First, we will consider the reasoning and decisions of the court with respect to the two cases which have invoked Article 15. As we will discover, the court’s decisions leave much to be desired regarding clarity in this area. Second, I will consider, with the help of a broad analogy, what might be the appropriate standard from a more conceptual point of view.

I much recommend the movie format of the paper presentation found below. I have included a slide show highlighting important pieces of text as well as images which I hope bring a little life to what can be a dry subject. For those who prefer to read the paper a pdf version may be found here.

I want to heartily thank Basak Cali for the commentary which may be found here.

Below the movie version and an audio only version as well. Enjoy!

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One Response to PPPS: Margin of Appreciation

  1. In response to Basak Cali I would like to make a few points. First, I would like to thank Dr. Cali for her very insightful and thoughtful comments on the paper.

    With regard to her general criticism: I concede that the paper is a bit of a vignette, where perhaps a short story is more appropriate. In focusing narrowly on the court’s interpretation of Article 15 it leaves aside a lot of relevant discussion about the background and history of the court and the form of supra-national review it instantiates. The actual and appropriate role of liberal rule of law traditions especially for supra-national normativity is such a broad and controversial discussion that I had hoped that the pinpoint focus of the paper would allow the conclusions it draws to more easily be taken up into the various threads of this discussion, and not identify it with any particular one. But this may have been a mistake which broadens the arguments application only by limiting its impact.

    I have a couple of points to make with regard to Dr. Cali’s bringing to bear Scanlon’s fascinating discussion of permissibility and responsibility in “Moral Dimensions: Permissibility, Meaning, Blame” (2008). The first point is that as a Rawlsian I would point out that the principles of justice, which regulate the actions of institutions, especially those of sovereign governance “must not be confused with the principles which apply to individuals and their actions in particular circumstances.” (A Theory of Justice p. 54) The normative distinctness of the principles of justice from principles of morality means that there is at least one large bridge that has yet to be crossed in order to bring Scanlon’s arguments to bear on our discussion. It is not the moral responsibility of an agent we are seeking to establish, but the normative status of an institution. Admittedly, I myself rely on an analogy to actions by individuals in making my argument. Yet I rely on it only as an instructive analogy, and I attempt to address the gap between individual and institutional normativity by narrowing the analogy to police officers with similar institutional duties to those of government (which a independent individual agent wouldn’t have).
    For the sake of argument, however, (and because despite my Rawlsian leanings I believe in a certain meta-ethical justificatory unity between the principles of justice and the principles of morality) let us accept that if the Scanlonian argument works in the case of morality, it does so in the case of institutional justice as well. Having accepted this conditional, I would proceed at this point by denying its antecedent. Without lengthy discussion, (which I am not prepared for at the moment though it would certainly be an interesting one) I would deny that Scanlon has successfully argued for the principled normative separation between responsibility and permissibility. Despite the arguments presented in Moral Dimensions I remain unconvinced that the interesting and very real conceptual distinction between responsibility and permissibility amounts to a complete normative uncoupling of the two concepts. While it may be a somewhat old-fashioned intuition, I maintain that agents are morally responsible (in the negative sense) if and only if they have done something impermissible. While I believe that Scanlon’s book very usefully explores and clarifies an area of normative inquiry which has been the source of much imprecision and confusion, I am still not prepared to accept his conclusion based on the arguments presented.

    Finally I turn to what I see as perhaps the most powerful criticism of my argument. This is an examination of the implicit assumption I have made in presenting my argument that the objective standard is more stringent, and for that reason more appropriate in Article 15 cases. I see now that I have failed to take into account a clearly relevant possibility. This is the possible case in which there was, in fact, a “threat to the life of the nation,” but that despite this, the government was wrong to have abrogated its citizens’ rights because it did so on the basis of insufficient (or irrelevant) evidence. This is analogous to cases in which the police execute a search based on what later turns out to be insufficient probable cause, but nevertheless finds evidence or contraband. In this sense it is very clear that the good faith standard may in some situations actually make more exacting demands on the government than the objective standard.
    I am also rather sympathetic toward the idea that putting itself in the respondent government’s subjective shoes is valuable for the court “in order to respect some other important values such as respect for deliberative processes on deeply divisive issues, and respect for the integrity of just domestic laws.”
    For the sake of argument then let me propose the idea that the appropriate standard is the very strictest one of all, a combination of both the objective and subjective standard. On this conception it must be the case both that an emergency existed and that the government had sufficient evidence of its actuality, in order to justify derogations. Clearly this is a standard we would never impose on an individual laboring under all of the epistemic limitations inherent in human agency. But perhaps, for some of the reasons I give at the end of the paper, it is one we should impose on the, (gravely and—in the modern world—globally dangerous when too powerful), institution of sovereign governance. Perhaps the stakes are too high and an entity with such concentrated de facto power may not be allowed even an honest mistake of such magnitude without normative repercussions to its legitimacy.

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