Importantly, the crux of this question mainly lies on a critical analysis on Harris’s statement on the application margin of appreciation under Art.2. and Art. 8 of European Convention on Human Rights (hereinafter referred to as ‘ECHR’). In examining Harris’s statement , it simply denotes that the application of the convention may often be varied because of the absence of consensus probably due to cultural relativism or pluralism. It has been propounded that human rights is universal , but it is inevitable for each country to adopt different practices and perception.
Although there were numerous movements in promoting the unity of the European, but it seems to have failed. Robertson indicates the unity principle’s outcome is less than what is desired. Thereby, as Murat notes, the court will invariably grant a leeway to the state in deciding the cases namely, the ‘Margin of appreciation’. This maxim owes it genesis from a French term ‘marge d’ appreciation’ that deemed as a doctrine which gives way to a state’s discretion in their governance.
More often than not, margin of appreciation doctrine applies when it comes to a question of ‘morality’. It seems to be a truism that Harris’s statement does reflect the court’s manoeuvre Notably, Jeffrey claims the more diversify of the laws on the state; a wider margin would be granted. As contended by Yutaka, a level of discretion will be allowed to the member states to consider any relevant circumstances. As a consequence, it can tentatively be concluded that doctrine could be one of the very efficient shields of the member states.
The paucity of European consensus thus results in some controversial issues left vaguely decided, for example, the right to abortion that come...
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...2003) 37 EHRR 611(Grand Chamber judgment)
Ibid at n45
Series A 28, pp48-50
Series A 250 , p90, 27th November 1992
Prof. Jeffrey A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the rule of law, Vol.11, Columbia Journal of European Law (2004-2005)
Ibid n44
Report 1997-I-323
Ibid n50
Mahoney, Marvellous Richness of Diversity or Invidious Cultural Relativism? 12 Human Rights Law Journal 1, 5( 1998)
Ibid
Ibid at n50
Danny Shaw,’UK’s should cut links with ECHR’ BBC News, 7th February 2011 accessed 29th March 2011 < http://www.bbc.co.uk/news/uk-12338931#story_continues_1>
Tom Newton Dunn, ‘Go to the war on the Eurom Law’ The Sun, 7 February 2011accessed 29 March 2011 http://www.thesun.co.uk/sol/homepage/news/3395471/David-Cameron-urged-to-go-to-war-over-Euro-law.html
Ibid
The Human Rights Act of 1998 was co-founded upon the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Developed following the ending of the Second World War, European Convention on Human Rights (ECHR) was constructed to further the idealistic principles and endeavours of equality among all human beings, as well as a devout declaration of preventing the reoccurrence of the holocaust and massacres which have occurred as a casus belli . ECHR comprises civil privileges and liberties fundamental to all human beings irrespective of race, gender, age, sexual orientation exclusive of discrimination. The UK government have promptly endorsed the ECHR, recognising the need of ...
The current issues concerning a woman’s right to an abortion include the debates between pro-life and pro-choice groups that promote either restrictions or extensions to a woman’s ability to receive abortions respectively, along with debate about the role that the government should play in the process of limiting or extending rights. Pro-life groups argue many points against abortion including the beliefs that life begins at conception, adoption is a viable alternative to abortion, the procedures sometimes cause medical complications, a...
Simmonds C., ‘Paramountcy and the ECHR: a conflict resolved? [2012] Cambridge Law Journal Vol. 71 Issue 3, 498-201
The case of Francovich had a significant impact on the European Union (EU) law. If a conflict arises between the EU law and the national law, the EU law highly prevails. The European Union law is a framework of treaties and legislation, which have a direct or indirect effect on the laws of the member states which are bound to the European Union. Primary and Secondary laws are the two sources of the EU law. This essay will firstly analyse the main institutions of the European Union and define various legal terms. It will then move on, to discuss the case of Francovich and the importance it had for state liability. Furthermore, it will refer to subsequent cases which are linked with state liability and had an impact on the EU Law. Lastly, my own views about State Liability will be presented.
The Role of General Principles in E.U. Law as Opaque and Uncertain Since the founding European Community Treaties of the 1950’s there has been a noticeable evolution in regards to the lack of provisions concerning the protection of human rights in the conduct of the Community affairs. Primarily this evolution was the work of The Court of Justice, who stated that “the ‘general principles of EC law’ include protection for fundamental rights which are part of the common constitutional traditions of Member States. ”[1] Article 249 of the EC treaty lays out the sources from which the Community may govern, with greatest emphasis being placed on regulations and directives. However, there are ‘softer’ forms of law, which have been adopted due to their natural and logical evolution in practice.
The evolution of human rights is a remarkable process in the Post-World War II international law. Human rights went through a very influential change following 1945 as a result of the massive violations of human rights taking place during the Second World War. The next sixty years were marked by the development of sophisticated international human rights treaties. General human rights gradually climbed up to the international level and joined the club of slavery and labor rights. The adoption of the UN Char...
When looking at the development of abortion policy, it is clear that it has always been a subject of controversy. Campaigns for the legalisation of...
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Art 5(1)(e)
Jack Donnelly, Alison D. Renteln, and Abdullahi Ahmed An-Naim all have different opinions when it comes to human rights and the exact way we should go about discussing human rights. The debate between the scholars and me come from the debate between the two principles of Liberal Universalism and Cultural Relativism. In my own opinion, I believe that it discussing human rights has to involve both theories and a cross-cultural discussion between us all so that we can come to an agreement when looking for a solution in certain cases.
It is important to understand cultural relativism and universalism by definition for this assessment to understand why relative universalism is simply a reclassification, and how it fails to facilitate further innovation. Both quotes from the World Conference of Human Rights, which were previously used as one of Dahre’s supporting points, say that the UDHR is universal. Subsequently, the conference also stated that external factors such as culture, religion, and other particularities, “Must be borne in mind”. Comparing these two defining quotes to Dahre’s Relative universalism shows a striking similarity. Relative universalism is said to be the integration of universalism and relativism without trying to find “Some moral space in-between”. What Dahre believes to be the solution already exists in the fundamentals in the relationship between relativism and universalism. The difference is that Dahre essentially argues to stop the pursuit of a middle ground. When referring to the “middle ground” it is interpreted as being the solution of the dichotomy between culture and universal human rights. Both perspectives, Dahre’s and the current dichotomy, have the same goal of balancing the two. Dahre’s solution in contradiction admits what universalists wont, that the pursuit of a middle ground does not exist. Although Dahre seems a bit monotonous in his assertions of
‘The ideal of a united Europe, strong in economic and political institutions, became increasingly attractive to European statesmen after the Second World War (1939–45)’ (Oakland 101) The chance to unite the Europe appeared with the arousal of European Economic Community (EEC), when six countries (West Germany, France, Belgium, the Netherlands, Luxembourg and Italy) signed the Treaty of Rome. That agreement shaped the future for the future generation that we currently live in. Britain regarded itself as a commercial power and did not wish to be restricted by European relationships. At that time, t...
There is such a thing as universality of human rights that is different from cultural relativism, humanity comes before culture and traditions. People are humans first and belong to cultures second (Collaway, Harrelson-Stephens, 2007 p.109), this universality needs to take priority over any cultural views, and any state sovereignty over its residing citizens.
Europe has a history of war and conflict that predates living memory and the idea of a united Europe is something that appears repeatedly in that history. Hitler, Napoleon, and the many Roman Emperors all sought a united Europe. Their quests although in many ways motivated by a horrifying desire for power sparked the minds of philosophers and other political thinkers to imagine Europe united in harmony and peace despite national differences. Today we have the European Union which is quite unique. After the horrors, bloodshed, and economic disaster of the twentieth century, in a desire for peace and harmony and economic and political prosperity twenty-seven states have limited their national sovereignty.2 With national interests and ambition still in mind these countries see the European Union and supranational governance and the benefits of peace and prosperity therein as something worthwhile. However, in the history of European integration there has been much conflict and Euroskepticism. Some see unity in diversity and diversity in unity as impossible, and the existence of differentiation in the EU as highly problematic. However, differentiation in the European Union’s integration process is not the hindrance it is often defined as, rather it creates further cooperation in Europe bringing the European Union closer to its objectives of peace, and economic and political growth, resulting in a more effective and efficient bureaucracy. Differentiation in the EU’s integration process has created more successful integration as it allows the nations who wish t...
On December 10th in 1948, the general assembly adopted a Universal Declaration of Human Rights. This declaration, although not legally binding, created “a common standard of achievement of all people and all nations…to promote respect for those rights and freedoms” (Goodhart, 379). However, many cultures assert that the human rights policies outlined in the declaration undermine cultural beliefs and practices. This assertion makes the search for universal human rights very difficult to achieve. I would like to focus on articles 3, 14 and 25 to address how these articles could be modified to incorporate cultural differences, without completely undermining the search for human rights practices.
There have been individuals and even countries that oppose the idea that human rights are for everybody. This argument shall be investigated in this essay, by: exploring definitions and history on human rights, debating on whether it is universal while providing examples and background information while supporting my hypothesis that human rights should be based on particular cultural values and finally drawing a conclusion. A general definition of human rights is that they are rights and freedoms to which all humans are entitled, simply because they are human. It is the idea that ‘all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’