17 Sep When Universal Norms Collide
One of the more difficult issues about universal norms is that they frequently collide. How is a country to respond when it must choose between two norms, both of which are said to be universal and yet they are incompatible with one another?
To illustrate, the Universal Declaration of Human Rights enumerates universal norms and boldly states that “every individual and every organ of society” must “promote respect for these rights and freedoms” and “secure their universal and effective recognition and observance.” But then when one digs deeper and takes an issue like freedom of expression, it is clear that recognition and observance of one universal norm is incompatible with recognition of another universal norm. Take the following provisions in the Universal Declaration of Human Rights:
• “Everyone has the right to freedom of opinion and expression…” (Art. 19)
• “No one shall be subjected to … attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” (Art. 12)
• “All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” (Art. 7)
• “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to … manifest his religion or belief in teaching, practice, worship and observance.” (Art. 18)
• “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (Art. 27)
• “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” (Art. 28)
• “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” (Art. 29)
While these are all universal norms, it is uncertain how each country should balance these potentially competing interests. There is normative indeterminacy about how any particular country should balance Article 19’s right to free speech (however hateful or dangerous), Article 18’s right to teach one’s religion (however inflammatory or discriminatory) and Article 27’s right to secure the material benefits from one’s artistic production (however obscene or defamatory) against Article 7’s right to be free from discrimination or incitement thereof, Article 12’s right to be free from attack against one’s honour and reputation, Article 28’s guarantee of social order, and Article 29’s restrictions on rights for the sake of morality, public order and the general welfare.
All of these provisions are universal norms embodied in the Universal Declaration, but there is no universal understanding of how to observe or balance these rights in specific contexts. One response to these competing norms would be to secure uniform agreement about striking the proper balance. Thus, on this theory everyone should adopt the same basic approach on something like hate speech, defamation, or obscenity. One could call this “generic constitutionalism.” Another approach, which I would describe as “constitutional exceptionalism,” would allow each state to strike the appropriate balance of these competing norms.
What I am suggesting is that the recognition of universal norms does not resolve the question of privileging one universal norm over another. On that question, with rare exceptions, each country should be free to contextualize the decision and prioritize the competing universal norms as it sees fit.
at the european level, the ECrtHR is facing the same dilemma.
It applies the proportionality principle and tends to allow a margin of appreciation to States, which is from my point of view controversial regarding the aim of the European Convention.
But other elements must be taken into consideration such as the nature and status of rights colliding (qualified, unqualified, Convention Rights or rights not guaranteed as such in the Convention, the status of the rights holder etc.)
An important question is the place of hierarchy (of norms and rights, formal or material, abstract or relative) in the resolution of rights collision.
in a few months a dissertation (mine in fact) will be defended on the subject of rights collision in the European case-law, it might be humbly helpful for a general thought on the subject.
Personnaly I don’t believe that absolute leeway should be given to states to decide which right is more important because it might endanger the idea of universalism. But, at the Universal level, the shortcomings of the universal system of protection might give no alternative; the situation is different for the efficient European system.
The difficulty of reconciling various human rights norms is, in some situations, undeniable. However, the various treaties drafted after the General Assembly adopted the Declaration do reflect a partial “universal understanding of how to observe or balance these rights”. For example, Articles 19 and 20 of the ICCPR provide at least a framework for reconciling the tensions in Article 7, 12, and 19 of the Declaration: Article 19 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.… Read more »
While I’m sure that Peggy knows more about the ECHR than I do, I was under the impression that the Court–through it’s margin of appreciation doctrine–was charting something of a middle path between “generic constitutionalism” and “constitutional exceptionalism”: allow states to apply convention principles as they see fit, but provide a cieling (or floor) for interpretation. This arrangement probably only works, however, if you have an institution like the ECHR to rule on specific cases (i.e., specific balancings). ECHR aside, I generally agree with a preference for “constitutional exceptionalism.” I find that many of the international agreements that attempt some kind of universal balancing (or gap filling)–such as the Beijing Rules on the Administration of Juvenile Justice–while sometimes important, often promote unhelpful or unrealistic policies, or they merely restate the vagueness of underlying conventions with more careful language with little guidance for difficult cases.
You are absolutely right. In several cases, the Court underlines that, when balancing convention rights, the margin of appreciation allowed to States must be wide, because it is a difficult exercise to achieve. But, looking more closely into the case law you find a lot of balancing cases where States have no margin of appreciation (for instance freedom of expression vs privacy)and other where they have an important one, with a deference displayed to States’ position. In fact, it is not the conflict between rights that leads to a wide margin of appreciation but the rights in conflict that does. When dealing with sensitive issues such as ones related to religion, morals, technical matters (see for instance Evans v. UK, 2007), the Court is carefull and gives a wide margin of appreciation. You can discuss that position and you will find pro and cons of that doctrine. Most of the times, the Court says that States are free to comply with the judgment as they please (it is another form of the margin of appreciation) but sometimes the compliance with the ruling gives no room for a choice in the means used (for instance, when dealing with rape States have… Read more »