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 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...
par 89 [4] Lord Scott, op-cit- par 155 [5] Dickson B, Law Versus Terrorism: Can law Win? 2005- European Human Rights Law Review [6] Lord Hope, Judgements- A(FC) and others (FC) (Appellants) v. Secretary of State for the Home Department(Respondent)-www.publications.parliament.uk- par 138 [7] Lady Hale- op-cit- par 238 [8] Lord Walker-op-cit- par 193 [9] Lord Hope- op-cit- par 107 [10] Lord Bingham- op-cit- par 42 [11] Lord Scott- op-cit- par 145 [12] Lord Hoffman- op-cit- par 97
It is well known that after World War II, states began to move away from the trends of nationalism that had brought on conflict in the first place. Across large parts of Europe, there is instead great support for federalism and get support for integration and interdependence. In 1952, the European Coal and Steel Community was created, followed by the establishment of European Economic Community in 1957. With allies being made and different treaties and agreements being signed, Europe was definitely becoming a ‘federation’. In 1973, Britain joins the EEC along with Denmark and Ireland. The European Union is then formally established by the Maastricht in 1993 and gains its 28th member, Croatia by July 2013. When a referendum was taken in the UK regarding joining the EU the vote was two-to-one in favour. The benefits of joining of the EU were clear. The UK would benefit not only in an economic sense but also politically and socially. However, in recent times, opinions have changed. There is now debate as to whether the UK should remain n member of the EU. More and more people are speaking in favour of the United Kingdom leaving the EU and standing on its own. While there are persuasive arguments for and against, it could still be argued that the argument against...
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.
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Art 5(1)(e)
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...
On the cultural challenge for universal human rights, some claims historical root of human rights in Europe and America, where there are several declarations of rights and revolutions to claim a tradition of struggling for the right. Hence, the fulfill of universal human rights in other areas may come up with a significant challenge. (Kühnhardt 1991) Universal human rights also are seen as a newly formed capitalism and would intervene state sovereignty.1 Another middle approach is to search a reconciliation through cross-cultural or intercultural dialog and recognition of plurality. (Etzioni 2010; Yu 2005; An-Naim 1995), an even universality of human rights should be reached by cultural dialog.(Donnelly 1984) Back to the construction of United Nations and the tuning point of drafting the UDHR, it is a deep reflection to inhuman atrocities and moves forward to considering how to intervene states overpower to violate human rights. However, while debating human rights within cultural diversity, the issue of human wrongs disappeared.(Chen 2010) Either jumping into a linear historical prospect or
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.
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...
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...
Charney, E., (1999) Cultural Interpretation and Universal Human Rights: A Response to Daniel A. Bell. Political Theory. 27 (6), 84. [online] Available from: [Accessed 28 February 2011]