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!
Margin of Appreciation: Play Now | Play in Popup | Download
Margin of Appreciation: Play Now | Play in Popup | Download
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