Forced to Argue in Two World Views – the Margin of Appreciation and the Schismatic Identity of the ECtHR

By Marjan Ajevski, Postdoctoral Fellow, MultiRights

In the puzzle set forth by Koskenniemi, who is as always dedicated to indeterminacy,[1] the banishment in the Enlightenment of notions of natural justice and of the acceptances of “principles of neutral justice”[2] as a guide to social organization has left us with the inability to justify our decisions based on a substantive notion of the good life, and, consequently, the need to hide behind a veneer of formally existing law.
 
The formality of international law makes it possible for each state to read its substantive conceptions of world society, as well as its view of the extent of sovereign freedom into legal concepts and categories. This is no externally introduced distortion of the law. It is a necessary consequence of a view which holds that there is no naturally existing ‘good life’, no limit to sovereign freedom which would exist by force of some historical necessity. If this kind of naturalism is rejected … then to impose any substantive conception of communal life or limits of sovereignty can appear only as illegitimate constraints – preferring one state’s politics to those of another. It is impossible to make substantive decisions within the law which would imply no political choice … in the end, legitimizing or criticizing state behavior is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just.[3]
 
In other words, what “cures” indeterminacy, what allows judges to “see” the law in one way rather than another is some sort of substantive account, an institutional practice (like the practice of law), judicial ideology[4], a substantive account of justice etc., etc., etc. It is this judicial ideology, a judicial (self-) perception that can shape and transform various judicial doctrines, doctrines like the topic of this post, the margin of appreciation at the ECtHR. It is the almost schismatic identity of the court (a Constitutional court of Europe or “just another” international court) that shapes the argumentation in the judicial opinions when it comes to the margin of appreciation for the Court has to both argue under the assumption that the European Convention is the expression of a European public order[5] (making it a Constitutional document and therefore the Court a constitutional court of Europe) and at the same time accept that the ECtHR is “nothing more” than an international court that has limited review powers using methodologies and concepts that must be quite different from domestic law. Tasked with this duality of identities the Court’s only argumentative choice is to argue under both assumptions, trying to satisfy both constituencies and not succeeding in convincing either of them.
 
But first, lets start with the two concepts of the margin of appreciation as put forward by Letsas[6] the substantive and the structural concept, the former being a concept that espouses some sort of formal/substantive rights theory and the later as a “feature of a supranational judicial system, designed to balance the sovereignty of the Contracting States with the need to secure protection of the rights embodied in the Convention.[7]” The first concept treats the issue of rights protection and the proper limitation of rights or balancing based on a certain theory of justice for which he puts forward at least four candidates.[8] Regardless of whether the Court actually espouses any of the theories of rights that Letsas claims (not a subject of this argument), the methodologies that the Court uses in this type of rights review are in essence constitutional rights methodologies the most obvious candidate being the proportionality test, a doctrine borrowed from the German Constitutional Court[9] and a mode of argumentation that is widespread in a constitutional rights review based on individual cases.
 
The second concept is familiar to international lawyers everywhere:
 
Under the structural concept of the doctrine, we may say that the state authorities enjoy a margin of appreciation, in that the Court will not substantively scrutinize their decision. Their margin has to do with the relationship between the [ECtHR] and national authorities, rather than with the relationship between human rights and public interest. It is considered by some to be the ‘natural product’ of the distribution of powers between the Convention institutions and the national authorities who share the responsibility for enforcement.[10]
 
Given the divergent perceptions that the court has of itself[11] (constitutional and/or international), visions of itself to which it is committed, it is no wonder that the resulting perception is that the margin of appreciation lacks coherence and takes on an air of arbitrariness. To elaborate more on this dual identity of the court I will discuss two recent and highly publicized judgments, the Hirst[12] and the Lautsi[13] cases where the margin of appreciation, or the lack thereof, was a major issue. Both of them were Grand Chamber judgments that arose after a State Party appealed a Chamber judgment.
 
The Lautsi case revolved around the issue of whether mandating the placement of the cross in public schools violates the parents’ right to education under Article 2, Protocol 1. The Chamber took a very noticeable constitutional rights review approach. It started with listing the principles behind Art. 2, P. 1 built up over the years through the Courts case-law. It said that:
 
It is on to the fundamental right to education that is grafted the right of parents to respect for their religious and philosophical convictions … [that it] aims at safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the “democratic society” as conceived by the Convention … [that the respect] for [the] parents' convictions must be possible in the context of education capable of ensuring an open school environment which encourages inclusion rather than exclusion, regardless of the pupils' social background, religious beliefs or ethnic origins.Schools should not be the arena for missionary activities or preaching … [that the] State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents' religious and philosophical convictions. That is the limit that must not be exceeded [and that the] [r]espect for parents' religious convictions and for children's beliefs implies the right to believe in a religion or not to believe in any religion [and that the] State's duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions. In the context of teaching, neutrality should guarantee pluralism.[14]
 
In the application of the principles the Chamber said that
 
the Court must consider whether the respondent State, when imposing the display of crucifixes in classrooms, ensured that in exercising its functions of educating and teaching knowledge was passed on in an objective, critical and pluralist way, and respected the religious and philosophical convictions of parents … [that] [i]n order to examine that question, the Court will take into account in particular the nature of the religious symbol and its impact on young pupils, especially the applicant's children, because in countries where the great majority of the population owe allegiance to one particular religion the manifestation of the observances and symbols of that religion, without restriction as to place and manner, may constitute pressure on students who do not practise that religion or those who adhere to another religion … [that] the symbol of the crucifix has a number of meanings among which the religious meaning is predominant, [that] [t]he presence of the crucifix may easily be interpreted by pupils of all ages as a religious sign, and they will feel that they have been brought up in a school environment marked by a particular religion. What may be encouraging for some religious pupils may be emotionally disturbing for pupils of other religions or those who profess no religion. That risk is particularly strong among pupils belonging to religious minorities. Negative freedom of religion is not restricted to the absence of religious services or religious education. It extends to practices and symbols expressing, in particular or in general, a belief, a religion or atheism. That negative right deserves special protection if it is the State which expresses a belief and dissenters are placed in a situation from which they cannot extract themselves if not by making disproportionate efforts and acts of sacrifice [and that] [t]he Court cannot see how the display in state-school classrooms of a symbol that it is reasonable to associate with Catholicism (the majority religion in Italy) could serve the educational pluralism which is essential for the preservation of “democratic society” within the Convention meaning of that term. [And finally] [t]he Court considers that the compulsory display of a symbol of a particular faith in the exercise of public authority … restricts the right of parents to educate their children in conformity with their convictions and the right of schoolchildren to believe or not believe. It is of the opinion that the practice infringes those rights because the restrictions are incompatible with the State's duty to respect neutrality in the exercise of public authority, particularly in the field of education.[15]
 
It is a long read I know, but this is only to show that there was nothing extraordinary in the Chamber’s reasoning, nothing extraordinary that is for a Supreme or Constitutional court rights review. It focused on the general principles deduced from the nature of the right in question and the Court’s own case law, it paid homage to the purposes of the founding document, the preservation of a pluralistic and democratic society, it emphasized the State’s duty of neutrality between the competing belief systems, and securing an individual’s right to educate one’s children in one’s belief system. It talked about the possible impact of the symbol of the cross on young children and their possible feeling of exclusion in relation to the State’s duty to provide a neutral and plural education system free of indoctrination (taken together it has somewhat of an oxymoronic feeling to it but …). In short, a text-book case of Con Law 101 argumentation on the separation of church and state. It did not, however, mention the margin of appreciation doctrine even though the Government argued for it.[16] Nevertheless, given the Court’s description of the margin of appreciation, namely. “that [t]he scope of this margin of appreciation is not identical in each case but will vary according to the context [… and that] [r]elevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned[17] one can argue that the Chamber did in fact do a margin of appreciation analysis, it just did not invoke it specifically, it did not argue through the language of the “prongs” of the margin of appreciation “test” even though it looked at the importance of the convention right (for a plural and a democratic society), the impact to the individual (feeling of exclusion) and the nature of the activities concerned (in a public school).[18]
 
Now lets turn to the Grand Chamber. In the discussion on general principles it said that Art. 2 of P. 1
 should be read in the light not only of the first sentence of the same Article, but also, in particular, of Article 9 of the Convention […], which guarantees freedom of thought, conscience and religion, including the freedom not to belong to a religion, and which imposes on Contracting States a “duty of neutrality and impartiality” [and] [i]n that connection, […] States have [the] responsibility for ensuring, neutrally and impartially, the exercise of various religions, faiths and beliefs. Their role is to help maintain public order, religious harmony and tolerance in a democratic society, particularly between opposing groups […] the requirements of the notion of “respect”, […] vary considerably from case to case, given the diversity of the practices followed and the situations obtaining in the Contracting States. As a result, the Contracting States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In the context of Article 2 of Protocol No. 1 that concept implies in particular that this provision cannot be interpreted to mean that parents can require the State to provide a particular form of teaching […] [and] the setting and planning of the curriculum fall within the competence of the Contracting States. In principle it is not for the Court to rule on such questions, as the solutions may legitimately vary according to the country and the era [and moreover] does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum. On the other hand, as its aim is to safeguard the possibility of pluralism in education, it requires the State, in exercising its functions with regard to education and teaching, to take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner, enabling pupils to develop a critical mind particularly with regard to religion in a calm atmosphere free of any proselytism. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents’ religious and philosophical convictions. That is the limit that the States must not exceed.[19]
 
When it came to apply the principles the relevant case at hand it said that the State had a duty respect the rights of the parents to “ensure the education and teaching of their children in conformity with their own religious and philosophical convictions”, that the “crucifix is above all a religious symbol” that “[t]here is no evidence before the Court that the display of a religious symbol on classroom walls may have an influence on pupils and so it cannot reasonably be asserted that it does or does not have an effect on young persons whose convictions are still in the process of being formed” and that be that as it may “the applicant's subjective perception is not in itself sufficient to establish a breach”. Furthermore, even though the decision on whether to perpetuate or not a tradition “falls in principle within the margin of appreciation” that in itself “cannot relieve a Contracting State of its obligation to respect the rights and freedoms enshrined in the Convention and its Protocols”. However, it also said that “[t]he fact remains that the Contracting States enjoy a margin of appreciation in their efforts to reconcile exercise of the functions they assume in relation to education and teaching with respect for the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions” even though it “goes hand in hand with European supervision” and that “[t]he Court therefore has a duty in principle to respect the Contracting States’ decisions in these matters, including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination.” Placing the cross in a classroom, though, does not amount to indoctrination because “a crucifix on a wall is an essentially passive symbol” and it “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.”[20]
 
On the point of the margin of appreciation and the proper role of the Court the Grand Chamber said that the “Court must […] take into account the fact that Europe is marked by a great diversity between the States of which it is composed, particularly in the sphere of cultural and historical development” that it “therefore has a duty in principle to respect the Contracting States’ decisions in these matters [of education and building a curriculum], including the place they accord to religion, provided that those decisions do not lead to a form of indoctrination” and that that “the decision whether crucifixes should be present in State-school classrooms is, in principle, a matter falling within the margin of appreciation of the respondent State. Moreover, the fact that there is no European consensus on the question of the presence of religious symbols in State schools […] speaks in favour of that approach.”[21] Distinguishing, or rather differently linking the case of Dahlam (which involved Switzerland’s dismissal of a teacher who wore a head scarf in class because it intended to protect the pupils’ religious beliefs) and Lautsi the Grand Chamber said that the margin of appreciation cuts both ways and in a field of diverse application like religion in schools what matters is not the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned but rather whether the “authorities had duly weighed the competing interests involved.”[22] It is a hands-off approach, one that looks into certain formal requirements of whether the Italian authorities considered the right things and not whether they did the right thing.
 
Moreover, the concurring opinion of Judge Rozakis makes the head-counting manoeuvre more explicit. He starts from re-branding the issue to one not of the right to education of the children but to the right of the parents weighed with the “right of society, as reflected in the authorities’ measure in maintaining crucifixes on the walls of State schools, to manifest their (majority) religious beliefs.” In this balancing the question emerges of where should the Court stand? According to Judge Rozakis the Court’s answer is clear “from the part dealing with the overview of law and practice in the member States of the Council of Europe with regard to the presence of religious symbols in “State schools” […] [it is clear]: there is no consensus among European States” and regarding the proper role of the Court
 
It should be observed here, while we are on the subject of a consensus, that the Court is a court of law, not a legislative body. Whenever it embarks on a search for the limits of the Convention's protection, it carefully takes into consideration the existing degree of protection at the level of the European States; it can, of course, afford to develop that protection at a level higher than the one offered by a specific respondent State, but on condition that there are strong indications that a great number of other European States have already adopted that degree of protection, or that there is a clear trend towards an increased level of protection. … In view of the fact that there is still a mixed practice among European States on the issue, the only remaining guidance for the Court in achieving the correct balance between the rights involved comes from its prior case-law. …The question which therefore arises at this juncture is whether the display of the crucifix not only affects neutrality and impartiality, which it clearly does, but whether the extent of the transgression justifies a finding of a violation of the Convention in the circumstances of the present case. Here I conclude, not without some hesitation, that it does not.[23]
 
The question that begs to be asked here is where did Judge Rozakis’ hesitation come from? Surely not from the same case-law that was cited by both the Chamber and the Grand Chamber, for as Judge Rozakis state clearly the first thing that one should look at is whether there is a mixed practice of European states, for if there isn’t one, if there is a uniform practice then the Court’s case-law be damned. What seams compelling is not the strength of the Court’s case law either way but the Court’s view of its proper role, for if the Convention is the representation of European public order then surely the right question would not be whether the Italian authorities (both administrative, legislative and judicial) did some sort of reasonable balancing between the rights of the individuals and the religious sentiments of the majority, but whether they struck the right balance as required by the Convention. If one needs to see a broad consensus on the issue before a right becomes a right then can there be a greater consensus than the ratification of the Protocol? Would a court of law take an opinion poll before deciding what the law is? But even Judge Rozaki’s opinion does not take the lack of a European consensus as the sole and only issue that counts, but rather the one that tips the scales for the review of case-law and the principles enshrined therein do matter since they are the “remaining guidance” for adopting a higher protection than the one a State offers.
 
The split personality of the Court it also clearly visible in the Hirst case dealing with the right of prisoners to vote. Maybe the best place to start is from the arguments of the UK government. The UK Government argued that “the right to vote was not absolute and that a wide margin of appreciation was to be allowed to Contracting States in determining the conditions under which the right to vote was exercised” that the Chamber “failed to give due regard to the extensive variation between Contracting States on the issue of voting by convicted prisoners, ranging from no prohibition to bans extending beyond the term of the sentence.” Moreover, “the matter had been considered fully by the national courts applying the principles of the Convention under the Human Rights Act 1998, yet the Chamber paid little attention to this fact while concentrating on the views of a court in another country” where the case “was interpreted by domestic courts to which the doctrine of the margin of appreciation did not apply.” Furthermore, the Chamber “had erred in effectively assessing the compatibility of national law in abstracto” that the interference with the right to vote pursued “legitimate aims of preventing crime and punishing offenders and enhancing civic responsibility and respect for the rule of law by depriving those who had breached the basic rules of society of the right to have a say in the way such rules were made for the duration of their sentence.” In addition the “measure was also proportionate as it only affected those who had been convicted of crimes sufficiently serious” and as to the charge or arbitrariness in the UK’s measure it argued “that, unless the Court were to hold that there was no margin of appreciation at all in this context, it had to be accepted that a line must be drawn somewhere.”[24]
 
The logic of the UK argument is clear. First it argues for the margin of appreciation as a structural argument, starting from the notion that the right in question was not absolute and that a disparity in application at a European level was eminent giving it a wide margin. Domestic case-law not part of the implementation of the convention does not and should not be considered by the Court since as national authorities they do not use a margin of appreciation reasoning and that an international court cannot do in abstracto review (invoking the spectre of a Kelsenian Constitutional court) but has to stick to the case at hand. However, it still felt compelled to also argue the issue of proportionality and to rebut the charge of arbitrariness (although invoking the margin of appreciation at the same time).
 
The Court’s answer, albeit rather long, was in essence to confirm the Chamber’s reasoning. It said that right to vote, as found in Art. 3 of P. 1 “guarantees individual rights, including the right to vote and to stand for election” and it went on to “highlight the importance of democratic principles underlying the interpretation and application of the Convention” by saying that the rights at issue in this case “are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law. Therefore, “the right to vote is not a privilege” and “[u]niversal suffrage has become the basic principle.” Nevertheless, “[t]here are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe which it is for each Contracting State to mould into their own democratic vision.” However, it is, “for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness;.” The operative test in this case, as developed by the Court’s case-law is “namely, the legitimacy of the aim and the proportionality of the measure.”[25] Applied to the case, the Court acknowledged that the ground cited by the UK government fall within the legitimate aims that can be pursued by a State and went on to consider the issue of proportionality. Regarding the issue of proportionality, the Court noted that the number of people striped of their vote was substantive, that the issue was not substantially considered by the British Parliament, that the national courts deferred to Parliament’s assessment and that, therefore, the British Parliament did not manage to sufficiently distinguish between categories of prisoners and offenders, in other words did not narrowly tailor its means of achieving the legitimate aim so sought. So far so good, the proportionality review in its essence. It, nevertheless, still decided to do a margin of appreciation analysis, or at least a margin of appreciation argument. Responding the UK’s claim of a wide margin it said that a) “that it is a minority of Contracting States in which a blanket restriction on the right of convicted prisoners to vote is imposed or in which there is no provision allowing prisoners to vote (13); and b) “even if no common European approach to the problem can be discerned, this cannot in itself be determinative of the issue.” “Therefore, while the Court reiterates that the margin of appreciation is wide, it is not all-embracing.”[26] And so much for the margin, since what follows is a typical proportionality reasoning by saying that
 
“although the situation was somewhat improved by the 2000 Act which for the first time granted the vote to persons detained on remand, section 3 of the 1983 Act remains a blunt instrument. It strips of their Convention right to vote a significant category of persons and it does so in a way which is indiscriminate. The provision imposes a blanket restriction on all convicted prisoners in prison. It applies automatically to such prisoners, irrespective of the length of their sentence and irrespective of the nature or gravity of their offence and their individual circumstances.Such a general, automatic and indiscriminate restriction on a vitally important Convention right must be seen as … being incompatible with Article 3 of Protocol No. 1.[27]
 
I must admit, there is a slight of hand in my quote of that last sentence from the Court’s judgment, for I omitted a section that reads “falling outside any acceptable margin of appreciation, however wide that margin might be, and as”. The reason for the omission is obvious, it is to show that that particular sentence does nothing, contributes nothing, neither to the “proportionality” nor to the “margin” review of the court. Absent that sentence, the standard of review would be the typical, run-of-the-mill “reasonableness” or “rational basis” standard employed in constitutional rights review. The concurring opinions say as much when the say “[i]n other, more general words, more would have been said by asserting that measures of exclusion must be “reasonable” than by referring to a “wide” margin of appreciation”[28] and “[t]he lack of a rational basis for that provision is a sufficient reason for finding a violation of the Convention, without there being any need to conduct a detailed examination of the question of proportionality.”[29] But once it is understood what that sentence does not do, one understands what it is supposed to do and what it is supposed to do is to show that the court made a structural argumentation regarding the margin of appreciation where the lack of a common standard and the “wideness” of the margin was deflected and where it has sought to show that despite the existence of this “wide” margin the UK measure is still beyond it. But what brings it beyond is never stated since a normal proportionality review is what the Court is left with.
 
And what brings it in the margin of appreciation side of the review is something that the dissenting opinion[30] does in its reasoning. They start with their argumentation by realigning the issue of the court, for what the dissenters see in the restriction of the right to vote of prisoners as being nothing different from other restrictions “on the right to vote that are of a general character, provided that they are not arbitrary and do not affect “the free expression of the opinion of the people”, examples being conditions concerning age, nationality, or residence.”[31] In here, prisoners are no different from minors, immigrants or emigrants – they have no say in the way the polity is run. They further continue in their re-characterisation by making the issue of the margin as an issue of the proper role of the Court especially in “developing human rights and the necessity to maintain a dynamic and evolutive approach in its interpretation of the Convention and its Protocols in order to make reforms or improvements possible” and, after citing several judgments, by saying that “[t]he majority have not made reference to this case-law, but that does not in our opinion change the reality of the situation that their conclusion is in fact based on a “dynamic and evolutive” interpretation of” Art. 3 P.1.[32] Even though they do not dispute the “important task for the Court to ensure that the rights guaranteed by the Convention system comply with “present-day conditions”, for them it is, nevertheless, “essential to bear in mind that the Court is not a legislator and should be careful not to assume legislative functions. An “evolutive” or “dynamic” interpretation should have a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved.”[33] And this is where the crux of the matter lay for what is important for evolutive interpretation is that it should follow state practice and not any state practice but a conclusive one, hence the head count. It is not only the fact that the Court is not a legislature but it is not even a national or heavens forbid a Constitutional court, for if it were a national or a Constitutional court it would not be a problem for it to interpret evolutively and it would not be such a big “sin” since some European countries have express authorizations in their laws that courts can interpret evolutively (see the Italian Civil Code for instance) while in others it is a matter of practice (for instance the German Constitutional Court has the doctrine of the limits of the wording).[34] To commit the sin of interpreting evolutively without grounding that interpretation in state practice in international law is to commit the sin of pretending to be nothing more and nothing less than a “normal” court, to play the game according to the specifications and limits set out by the different topics of law, it is to practice law pure and simple (pun intended for nothing in law is neither pure nor simple) with all the prejudices and all the baggage that that implies. To imply differently, to say that international courts are not like normal courts, is to imply that international law is not law since it is something altogether different in kind than national law or that international law is law but that international courts are not there to “do law”.
 
Which brings us to the present and the current Brighton draft proposals for the discussion around those proposals is the discussion of what is the proper role of an international court. It has almost nothing to do with the Court’s backlog and its reform in order to make it more efficient, even though that is invoked by the parties in the discussion. The opening salvoes of the testimony of the Court’s President in front of the UK’s Joint Committee on Human Rights parallel this discussion.[35] Sir Nicholas, answering the question regarding a possible dialogue between parliaments and the Court said that the more natural partners in the dialogue are national courts thanks to the similarities in their functions. When asked specifically about the legal basis in the Convention for evolutive interpretation, Sir Nicholas backtracked into the now familiar territory of Article 31 Vienna Convention rule and the object and purpose principle. However, when asked the much softer question of “[i]s there any real difference between that approach and the approach of our common law courts in using what they call an “updating interpretation”?” the answer was an unequivocal – “I do not think there is, and that was the point made by the President of the Supreme Court when he gave evidence to this body. It does not seem to me that the interpretive exercise that we carry out is different in substance from the role of national courts, either in developing the common law or indeed in updating statutes, as Lord Lester has said, to make them fit modern conditions.”[36] And the discussion does not end there, but when one reads the transcripts what becomes clear is that the discussion is between participants that talk on two different plains, starting from two different world views and assumptions, Sir Nicholas on the world view that what the task of the Court is is to be a court, to “do law”, while the world view of some of the Parliament members is that the Court is not a court at all but an international body, one that, using modern lingo, is there to “solve collective action problems” or “minimise transaction costs” or shape other states’ preferences and, therefore, any new decision by it and against a state is a “sovereignty loss”, a narrowing of the states freedom of action and an intrusion on the democratic polity. And no amount of evidence that can be marshalled by both sides can really convince the other for when Sir Nicholas uses examples and says it is the nature of the law and please look this has been done before by this or that court, the MPs will see that as evidence not of the Court being just another court but as the Court’s overreach, of its expansion in domains that are not of its preview for what an international court is supposed to do is apply the law as it was “expressly said” by the Member States like in the question of “[c]an you explain in which article of the Convention or Protocol there is expressly set out a right of prisoner voting? Are you aware of the travaux, which demonstrate clearly that states agreed to retain narrow exemptions to the franchise?”[37] At which point it puts us back at the beginning of the discussion because the answer to that can very well be: well according to the ways that law has been practiced both domestically and internationally and the different doctrines of interpretation … The answers simply do not translate, law is law no matter who does it versus international law is different not just in substance, like administrative and contracts law, but in kind because the assumptions behind international law are different.These viewpoints is what shapes the arguments of the Court when it issues a judgment and as long as it is forced to adopt an identity of a split personality, so long as there is a mainstream perception of a difference in kind rather than in substance between international and national law it will continue to argue in a schismatic way, using argumentative structures of constitutional courts when they do rights review while adding international law curve balls like the consensus head counting thus producing judgments that try and ultimately fail to reconcile both worldviews and succeeding in creating a perception of arbitrariness and cynicism.

[1] Martti Koskenniemi, The Politics of International Law (Hart 2011) p. 63.
[2] Ibid. p. 36.
[3] Ibid. P. 61.
[4] Darryl Robinson, ‘The Identity Crisis of International Criminal Law’ (2008) 21 Leiden Journal of International Law 925.
[5] Loizido v. Turkey (Preliminary Objection), 40/1993/435/514, 23 March 1995.
[6] George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705.
[7] Ibid., p. 720.
[8] Ibid., pp. 709-720.
[9] Generally see Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 73.
[10] Letsas, ‘Two Concepts of the Margin of Appreciation’, p. 721.
[11] For self-perceptions of courts and why this matters see Mitchel de S. O. l'E Lasser, ‘Judicial (Self-)Portraits: Judicial Discourse in the French Legal System’ (1995) 104 The Yale Law Journal 1325; Mitchel de S. O. L'E Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford University Press 2004).
[12] Hirst v. UK (No. 2), Application no. 74025/01, Grand Chamber, 6 October 2005.
[13] Lautsi and ors. v. Italy, Application no. 30814/06, Grand Chamber, 18 March 2011 (hereafter Grand Chamber judgment); and Lautsi v. Italy, Application no. 30814/06, Chamber judgment, 3 November 2009 (hereafter Chamber judgment).
[14] Lautsi Chamber judgment para. 47.
[15] Ibid. para. 49-57.
[16] Ibid., para. 38-41.
[17] Dissenting Opinion of Judge Malinverni Joined by Judge Kalaydjieva, Lautsi Grand Chamber judgment para. 1.
[18] Also see ibid.
[19] Lautsi Grand Chamber judgment para. 59-62.
[20] Ibid. para. 63-77.
[21] Ibid.
[22] Ibid.
[23] Concurring Opinion of Judge Rozakis Joined by Judge Vajic, Lautsi Grand Chamber Judgment.
[24] Hirst Grand Chamber judgment para. 47-52.
[25] Ibid. para. 56-52.
[26] Ibid. para. 72-84.
[27] Ibid. para. 82.
[28] Concuring Opinion of Judge Caflisch, Hirst Grand Chamber judgment, para. 2
[29] Joint Concurring Opinion of Judges Tulkens and Zagrebelsky, Hirst Grand Chamber judgment.
[30] Joint Dissenting Opinion of Judges Wildhaber, Costa, Lorenzen, Kovler and Jabens, Hirst Grand Chamber Judgment.
[31] Ibid. para. 5.
[32] Ibid.
[33] Ibid. para. 6.
[34] See for instance the introduction in Matthias Klatt, Making the Law Explicit: The Normativity of Legal Argumentation (Hart Pub. 2008)
[36] Joint Committee on Human Rights, Human Rights Judgments, Tuesday 13 March 2012, Sir Nicholas Vratza and Erik Friberg, available at http://www.parliament.uk/documents/joint-committees/human-rights/JCHR_Transcript_13_March_2012_UNCORRECTED.pdf (last visited on 19.03.2012).
[37] Ibid. Q143.
Tags: Human Rights By Marjan Ajevski
Published Mar. 20, 2012 3:14 PM - Last modified Aug. 18, 2015 1:35 PM
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