Fiona de Londras has just posted on SSRN an interesting article on gay rights under the European Convention on Human Rights. You can access the abstract and download the article
here. The focus of the brief article is applying ECHR jurisprudence on privacy, family life, and marriage to the Irish context as it relates to gay rights. It seems a critical aspect of the debate will revolve around the ECHR doctrine of the margin of appreciation. She writes that
[t]he margin appreciation is a key concept within ECHR law and … gives states discretion in questions of particular sensitivity. What is important, however, is that the margin of appreciation does not constitute a carte blance to do as one wishes. As a common consensus emerges, particularly on issues of sensitivity or issues in relation to which the law may be in a transitional stage, the margin will become narrower until it is no longer acceptable for a state to operate in a manner inconsistent with the convention rights as given effect by common European practice. The margin of appreciation therefore decreases in size as common consensus increases.
I find this a very interesting doctrinal idea. The margin of appreciation is broader or narrower based on the size of common consensus among the Member States? It strikes me as troublesome that ECHR rights can wax and wane under the margin of appreciation based on the degree of uniformity of political consensus throughout Europe.
It would suggest that an early gay marriage case brought a decade or two ago would lead to a conclusion that ECHR rights are more malleable and would give Member States a wide berth, but a later case brought a decade or two hence will lead to the opposite conclusion. It also suggests that conservatives who wish to crystallize the status quo should be bringing cases now, while liberals should push for political reform in strategic countries, wait for a common consensus, and then push for legal reform under the ECHR in the countries that are hold outs.
In addition, how does one determine common consensus on a controversial issue such as gay marriage? I can well imagine that Catholic or Muslim countries that are Member States will have a different context and different approach in which to apply ECHR obligations relating to marriage and family rights. Does consensus elsewhere in Europe mitigate the unique context of Catholic countries like Ireland or Poland or a Muslim country like Turkey?
I am no expert on the margin of appreciation, so illumination would be much appreciated.
Roger, I also find the European Court’s use of the margin of appreciation doctrine quite interesting. It is basically a way to accomodate cultural differences between European states, in much the same way as the US Supreme Court deals with certain federalism issues. The margin and its relationship with a European consensus are critical when it comes to the intersection of law and morality (e.g. does the right to privacy under the ECHR prohibit the criminalization of homosexuality, or does the ECHR contain a uniform definition of human life vis-a-vis abortion). If you look at these cases of the European Court (e.g. Dudgeon v. UK where the Court said that Northern Ireland must conform to the European consensus regarding homosexuality, or Vo v. France where the Court said that there is no European consensus on the beginning of life, and that therefore each European state may decide on its own), you will see that the Court heavily relies on a comparative approach, which is also textually warranted as the Convention allows for restriction of human rights only if a restriction is “necessary in a democratic society”. It is therefore only natural for the Court to look at other democratic societies,… Read more »
The margin of appreciation is a veritable minefield for scholars, as well as, I suppose, a convenient way for judges to not decide questions that might otherwise involve the Court in political difficulties. Just a few quick comments: I doubt whether ECHR rights can really be fluctuate, based on the differences in political views over time. I certainly fail to think of a case in which a change in state practice has ever reduced preexisting rights. But then again, this may be because state practice has never, in fact, been such as to reduce any human rights. This is one the great legends (whether true or not) of human rights law, isn’t it? That human rights (like democracy) will always grow in acceptance and scope? Well, it appears that so long as the Court persists in such a view, it may be true. I am told that there was early jurisprudence under which it was permissible to punish private homosexual behaviour. This was, of course, overruled by the Court in Dudgeon v. United Kingdom. So your statement on possible gay marriage cases seems to be correct. It is possible that two cases, brought at different times in the history of… Read more »
Marko,
I intended no offence to you in my reference to ‘a minefield for scholars’. I started writing before you posted and intend this simply as a way saying that the application of the doctrine may not be easily foreseeable.
I do look forward to your paper, of course.
Roger Thanks for the plug!! It’s (hopefully) evident that this is just a conference paper that hasn’t been made into a full article yet, but the margin of appreciation is one of the most interesting principles of the ECHR. Combined with the doctrine of dynamic interpretation, as Tobias mentions, the MofA attempts to ensure that the substance of rights should reflect contemporary morality. So yes, you could have a situation where the Court would say that Article Y does not protect the right to do X because this is an area of intense sensitivities so the court stays away. Why they do this is open for debate, of course – is it from respect for different states’ views on certain issues or is it in order to avoid dealing with difficult issues and wait to see the lay of the land in a few years? I don’t really know the answer to that yet – possibly a bit of both – but I think the line of authority on people who have had gender reassignment surgery is an excellent example, I think, of how the MofA can work. Could the MofA lead to reduction of effective protection by particular Articles?… Read more »
Congrats Fiona! You have indeed prompted some provocative discussion. So it seems there was ample reason we hadn’t heard from you in a while….
All good wishes,
Patrick
Tobias, of course, absolutely no offense taken.
As for your statement that the margin of appreciation might lead the Convention to mean one thing for one state, and something different for another: well, the margin has been criticised as leading to cultural relativism. I don’t share this view, as I don’t think the universality of human rights means total uniformity.
Take the outcome of the Leyla Sahin case, for example, which is completely ghastly by US standards, and most European states as well, but which is arguably appropriate for Turkey, and, possibly, for France. There is no European concept or consensus on the relationship between the church and state, and the Convention is not going to impose one, but will allow the authorities of each state to fashion their own solution.
But, of course, there always is a limit, as you also note.