MARGIN OF APPRECIATION UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

by: CHERYL L. DAYTEC

        Litigation is fallible. As the satirist Ambrose Bierce defined it, it is “a machine which you go into as a pig and come out of as a sausage.” Yet, in dealing with difficult issues involving human rights  calling for political judgment, it is still the best adversarial process there is, short of a revolution or political upheaval. None superior or less inferior to it has been contrived yet.

The adoption by the Strasbourg organs of the doctrine of  margin of appreciation  is not so much  an acknowledgment that “litigation is not the best procedure for dealing with matters of political judgment”[1] as it is a recognition of the fact that it is vulnerable  to flaws. Supranational bodies concerned with international human rights adjudication are confronted with similar  issues  with similar if not identical factual backdrops involving various  states.  Yet, this does not mean that they will  resolve all  cases by the same token. It may happen that  the political, socio-economic or cultural substructures of  similar issues raised against states are  each peculiar on its own.  To treat these unequally circumstanced states equally  is to discriminate.

Having said this, I agree  that “decisions about human rights are not a technical exercise in interpreting texts, but judgments about political morality.”[2] As a general rule, in exercising judicial review, it is not the province of courts to inquire into the wisdom of acts of sovereignty, otherwise they end up supplanting it.  But to observe metes and bounds set by the   political question doctrine  which is a bar to interpretation in domestic settings  is to give states an argument with which to legitimize human rights abuses. The obvious compromise is the application of the  margin of appreciation doctrine under which  supranational courts will scrutinize the necessity of the use of  a coercive measure or the derogation from obligations  or limitation of fundamental rights by states on the basis of the political morality thereof.

If decisions were about legal hermeneutics, supranational bodies can just pull the wool over their  eyes and invoke the doctrine of stare decisis.  In principle,  this doctrine is not controlling but in practical terms, there is nothing that stops them from citing precedents. Considering the volume of decided cases,  texts of human rights conventions have  been  construed in every possible way. Interpretations that may appear conflicting  lend credence to the fact that human rights conventions are living instruments.  Their interpretations insofar as   balancing  polarities created by  divergent interests in  a political community is evolving   with  the socio-political milieu. They are much  larger   than their  texts. Beyond cavil then, international human rights adjudication is not about expertise in text interpretation  because expertise cannot  be achieved when the meaning of a text is  ambulant, i.e.,  it is never final. What may be mastered is the science or art of judging the political morality of acts of states involving the use of coercive power.

In deferring to a state’s political judgment on a matter involving sensitive cultural, religious or national issues, a supra-national human rights court must not compromise universal values of morality. This is the lowest level it should go to. Otherwise, it becomes  a toothless body, shaved of its relevance in humanity’s unending struggle  to protect inalienable rights.  As  foundationalists argue,   “political morality is derived from  universal, immutable first principles that can be apprehended by rational reflection,”[3] which is not a faint echo of Yash Ghai’s assertion that human nature is universal, knowable by reason.[4]

For example, a state with a debt-ridden economy needs to generate revenues. After resorting to taxation, the national treasury remains cash-strapped. It has “white elephant” assets, the maintenance of which is further eating a sizable chunk of the national budget. To pave the way for mining as  source of revenue, it  expropriates the remaining  ancestral domains of indigenous peoples over the latter’s objection. The said domains are their source of livelihood, culture base and sacred grounds. Most of indigenous territories have been taken over  by the state in the past for development projects in the name of national interest.   The expected revenues from mining will pay part of the state’s debt and provide the much needed funds for  the state’s operation.  The state offers compensation beyond the properties’  fair market value to the affected peoples.  Is the act of expropriating the indigenous territories  politically moral?

 If I were the supranational court, I would rule that the state’s action is indefensible. Under Art. 1 of the International Covenant on Civil and Political Rights, in no case may a people be deprived of their means of subsistence,  an immutable principle. The taking of ancestral lands deprives the indigenous peoples of their means of subsistence. The act is tantamount to  cultural genocide  as indigenous peoples are attached to their land, divorced from which they become culturally extinct. Balanced against the  national interest sought to be served, which may be addressed through the sale of idle assets, the  taking of these peoples’ ancestral domains has far more onerous consequences and is politically immoral, infringing on the non-derogable right to life.   




[1] A.H. Robertson and J.G. Merrils. Human Rights in Europe. Manchester-New York, Manchester University Press, 1966, p. 190
[2] Ibid., p. 204

[3] Amstutz, Mark. International Ethics: Concepts, Theories, and Cases in Global Politics. Lanham: Rowland and Littlefield Publishers, Inc.; p. 12

[4] Yash Gai. “Universalism and Relativism: Human Rights as a Framework for Negotiating Interethnic Claims” in  21 Cardozo Law Review (1999-2000),  p.1096.
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