Language, education and the European Convention on Human Rights in the twenty-first century

Legal Studies ◽  
2002 ◽  
Vol 22 (4) ◽  
pp. 625-650 ◽  
Author(s):  
Katherine Williams ◽  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Language Education ◽  
First Century ◽  
European Convention ◽  
Language Rights ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation ◽  
Highly Sensitive ◽  
Controversial Area

In the Belgian Linguistic case the European Court of Human Rights held that legislation regarding language in education which was based on the principle of territoriality did not offend against the rights guaranteed in Article 2 of Protocol 1 or Article 8 of the European Convention on Human Rights, whether taken alone or in conjunction with Article 14 on non-discrimination. That ruling was given some 35 years ago, and this paper considers whether developments since then might lead the European Court of Human Rights to decide similar issues differently if they arose today. However, having considered the situation, including instruments which have been adopted specifically to deal with language rights and minority rights, the conclusion is reached that the European Court of Human Rights would be likely to continue to allow a fairly wide margin of appreciation to states in the highly sensitive and controversial area of language rights and how they should be protected.

scholarly journals Extraterritorial Laws for Cross-Border Reproductive Care: The Issue of Legal Diversity

2012 ◽  
Vol 19 (2) ◽  
pp. 187-200 ◽  
Author(s):  
Wannes Van Hoof ◽  
Guido Pennings
Keyword(s):  
Human Rights ◽  
Assisted Reproduction ◽  
European Convention ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation ◽  
Grand Chamber ◽  
Restrictive Legislation ◽  
The Right ◽  
The Eu

Abstract Certain states impose restrictions on assisted reproduction because they believe such acts to be morally wrong. However, people who live in a state with restrictive legislation always have the option of going abroad to evade that law. Turkey and several states in Australia have enacted extraterritorial laws to stop forms of reproductive travelling for law evasion. Within the EU, the European Convention of Human Rights would normally remove the need for extraterritorial laws. However, because of the wide margin of appreciation allowed by the European Court of Human Rights, legal diversity on these matters persists. In the case of S.H. and Others v. Austria, moral justification, consistency and proportionality were introduced by the First Section to rule on Member States’ legislation on medically assisted reproduction. The First Section mostly ruled on the effectiveness of the law, while the focus should be on the validity of the normative aim. The Grand Chamber reversed this judgement based on the margin of appreciation doctrine, using it as a pragmatic substitute for a substantial decision. In general, the EU’s interests of harmonization and unification are at odds with the right to national identity of individual states in areas of contested morality.

scholarly journals The Siren’s Call? Exploring the Implications of an Additional Protocol to the European Convention on Human Rights on National Minorities

2016 ◽  
Vol 23 (1) ◽  
pp. 1-38 ◽  
Author(s):  
Stephanie E. Berry
Keyword(s):  
Human Rights ◽  
Advisory Committee ◽  
European Convention ◽  
Council Of Europe ◽  
Wide Margin ◽  
Additional Protocol ◽  
National Minorities ◽  
European Court ◽  
Margin Of Appreciation

Calls for the adoption of an Additional Protocol to the European Convention on Human Rights (echr) on National Minorities have persisted within the Council of Europe despite the adoption of the Framework Convention for the Protection of National Minorities (fcnm). This article explores the potential implications of the adoption of an Additional Protocol on National Minorities to the echr for the fcnm. The European Court of Human Rights (ECtHR) already has several tools that would allow it to extend protection to persons belonging to national minorities. However, as the ECtHR tends to allow States a wide margin of appreciation in cases concerning persons belonging to minorities, it is argued that the adoption of an Additional Protocol on National Minorities may not be desirable, as it has the potential to undermine the progress made by the Framework Convention Advisory Committee.

scholarly journals The Role of the European Court of Human Rights in Promoting Horizontal Positive Obligations of the State

2017 ◽  
Vol 17 (2) ◽  
pp. 39-53 ◽  
Author(s):  
Monika Florczak-Wątor
Keyword(s):  
Human Rights ◽  
The State ◽  
European Convention ◽  
Wide Margin ◽  
European Court ◽  
Margin Of Appreciation

Summary Over the last forty years the concept of the horizontal positive obligations of the State Parties to the European Convention on Human Rights has been developing in a number of cases of the European Court of Human Rights. This concept extends the protection of Convention rights and freedoms to horizontal relations, that is, to the relations between two private parties. However, the Convention on Human Rights can be violated only by the State; the violation by private parties is not possible, as private parties are not parties to the Conventions. Therefore, the only way to challenge a violation of Convention rights committed by private parties is to link this action to an act or omission of the State, and to claim that the State is responsible for it. This, in turn, requires demonstrating that the Convention obliges the State to protect one individual’s Convention rights from violations committed by other individuals. The State has a wide margin of appreciation as to how it discharges the obligation to protect Convention rights against violations by private individuals.

Abortion for Foetal Abnormalities in Ireland; The Limited Scope of the Irish Government’s Response to the A, B and C Judgment

2013 ◽  
Vol 20 (2) ◽  
pp. 117-143 ◽  
Author(s):  
Stephen Donoghue ◽  
Claire-Michelle Smyth
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Legal Abortion ◽  
Member States ◽  
Non Invasive ◽  
European Court ◽  
Margin Of Appreciation ◽  
Controversial Topic ◽  
The Government ◽  
Limited Scope

Abstract Abortion has been a controversial topic in Irish law and one which the Government has been forced to address following the decision of the European Court of Human Rights in A, B and C v. Ireland. The Working Group established to make recommendations have specifically been instructed to deal only with the issues raised in the A, B and C judgment and legislate on the basic of the ‘X case’. This restricted approach calls for legalisation of abortion only where the life of the mother is at risk, a position unique only to Ireland and Andorra within Europe. The vast majority of member states to the European Convention on Human Rights allow for legal abortion on the basis of foetal abnormality and with this emerging consensus the margin of appreciation hitherto afforded by the European Court to member states is diminishing. The advancement and availability of non-invasive genetic tests that can determine foetal abnormalities together with the ruling in R. R. v. Poland leaves Ireland in a precarious position for omitting any reference to foetal abnormalities in any proposed legislation.

Muslim Reformists, Female Citizenship, and the Public Accommodation of Islam in Liberal Democracy

2012 ◽  
Vol 5 (1) ◽  
pp. 2-35 ◽  
Author(s):  
Mohammad Fadel
Keyword(s):  
Human Rights ◽  
Gender Equality ◽  
Islamic Law ◽  
European Convention ◽  
Political Equality ◽  
The Public ◽  
European Court ◽  
Margin Of Appreciation ◽  
Gender Hierarchy ◽  
Normative Justification

AbstractThe European Court of Human Rights (ECHR), in a trilogy of cases involving Muslim claimants, has granted state parties to the European Convention on Human Rights a wide margin of appreciation with respect to the regulation of public manifestations of Islam. The ECHR has justified its decisions in these cases on the grounds that Islamic symbols, such as the ḥijāb, or Muslim commitments to the shari‘a — Islamic law — are inconsistent with the democratic order of Europe. This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars — Yūsuf al-Qaraḍāwī and ‘Abd al-Ḥalīm Abū Shuqqa — as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective of political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women. This makes less plausible the ECHR's arguments justifying a different treatment of Muslims on account of alleged Islamic commitments to gender hierarchy. It also argues that in light of Muslim modernist conceptions of the shari‘a, there is no normative justification to conclude that faithfulness to the shari‘a entails a categorical rejection of democracy as the ECHR suggested.

When interpreting domestic legislation courts must, so far as it is possible, read and give effect to such legislation in a way which is compatible with the Convention rights; see s3(1). Hence domestic courts are given a degree of latitude – reference to the jurisprudence of Strasbourg is mandatory – but it need only be taken into account. Legislation must be construed in a manner compatible with the Convention but only so far as is possible. Three points are particularly worth noting: • When applying the European Convention on Human Rights a domestic court should be prepared to take a generous view as to whether an activity falls within the protection afforded by the Convention’s articles. • The Convention is to be regarded as a ‘living’ or ‘dynamic’ instrument to be interpreted in the light of current conditions. More recent decisions of the European Court of Human Rights will be regarded as carrying more weight than earlier decisions. • Where an Article of the Convention permits some state interference with the enjoyment of a right, a court assessing the extent to which that interference is compatible with the Convention should consider (i) whether the interference is provided for by law; (ii) whether it serves a legitimate purpose; (iii) whether the interference is proportionate to the end to be achieved; (iv) whether it is necessary in a democratic society; (v) whether it is discriminatory in operation; and (vi) whether the state should be allowed a margin of appreciation in its compliance with the Convention – that is, be allowed to apply the Convention to suit national standards. The ‘quality of law test’

1996 ◽  
pp. 88-88
Keyword(s):  
Human Rights ◽  
National Standards ◽  
European Convention ◽  
Domestic Court ◽  
European Court ◽  
Margin Of Appreciation ◽  
Domestic Legislation ◽  
Domestic Courts ◽  
State Interference

Handyside v United Kingdom (1979–80) 1 EHRR 737, European Court of Human Rights

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Public Law ◽  
European Convention ◽  
European Court ◽  
Margin Of Appreciation ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Domestic Law

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Handyside v United Kingdom (1979-80) 1 EHRR 737, European Court of Human Rights. This case concerned a book which breached the Obscene Publications Act 1959. The publisher, Handyside, contended that the domestic law (the 1959 Act) breached his Article 10 rights under the European Convention on Human Rights. The case introduced the concept of the ‘margin of appreciation’ accorded to states as regards the implementation of convention rights. The case predates the passage of the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

Introduction

2020 ◽  
pp. 1-10
Author(s):  
Claire Fenton-Glynn
Keyword(s):  
Human Rights ◽  
Juvenile Justice ◽  
Family Law ◽  
Case Law ◽  
European Convention ◽  
The Past ◽  
European Court ◽  
Margin Of Appreciation ◽  
Growing Body ◽  
International Instruments

This chapter provides a brief introduction to the European Convention on Human Rights (ECHR), and the European Court of Human Rights (ECtHR), as it relates to children. Over the past 60 years, the ECtHR has developed a substantial and ever-growing body of case law concerning children, covering issues ranging from juvenile justice and physical integrity to immigration, education, and religion, as well as a code of family law which significantly expands the scope and influence of the ECHR. The chapter explains four key principles of interpretation (positive obligations, the living instrument doctrine, subsidiarity, and the margin of appreciation), as well as the Court’s use of international instruments.

Positive subsidiarity and its implications for the margin of appreciation doctrine

2019 ◽  
Vol 37 (3) ◽  
pp. 210-227 ◽  
Author(s):  
Eva Brems
Keyword(s):  
Human Rights ◽  
Political Debate ◽  
First Line ◽  
Wide Margin ◽  
Positive Dimension ◽  
European Court ◽  
Margin Of Appreciation

The article presents an argument in favour of a richer theory of subsidiarity in the European Court of Human Rights context. In particular, the proposal is to include what is called a ‘positive’ dimension in subsidiarity thinking. That is to say, the article argues that the scholarly and political debate on ECHR subsidiarity has focused mostly on ECHR restraint, associated with a wide margin of appreciation for the States Parties. There is however a complementary dimension in the subsidiarity layout, which concerns the responsibility of national authorities to offer first-line protection of Convention rights. The article examines the role the European Court of Human Rights can play in facilitating that first-line responsibility. The article explores what this means for the margin of appreciation of national authorities.

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