the doctrine of margin of appreciation entail

The doctrine allows the Court to reconcile practical differences in implementing the articles of the Convention. Such differences create a limited right, for Contracting Parties, "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention, as a supervisory framework for human rights. In applying this discretion, European Court judges must take into account differences between domestic laws of the Contracting States as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of European Union law. The purpose of the margin of appreciation is to balance individual rights with national interests, as well as resolve any potential conflicts.

The doctrine of the “margin of appreciation" plays a fundamental role in the smooth functioning of the organs and institutions of Contracting States and Strasbourg. Given that Contracting States possess different legal and cultural traditions, it is inevitable that States shall occasionally view the application of their EHCR obligations differently. These differences have the potential to result in confrontations between the Strasbourg Court and a Contracting State. Whilst that is the case, the Strasbourg Court is not only obliged to interpret the ECHR, but is also obliged to respect the sovereignty of a Contracting State. The doctrine of the “margin of appreciation" provides the Strasbourg Court with the means by which to permit national authorities to enjoy the freedom to apply the Convention in accordance with their own unique legal and cultural traditions without flouting the ultimate objective and purpose of the Convention.

the essence of the proportionality test

Generally, the proportionality test has two internal functions for the Strasbourg judges: (1) strike fair balance between/among the competing interests; (2) testing on the reasonableness and appropriateness between the measures employed and aim pursued. In the first category, the primary task of the Court is to protect the scope of “essence” of the Convention rights from the interference of collective goods relying on the interest-based rights theory. Beyond this scope, the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.

What are derogations to human rights treaties?

States have a right to derogate from certain obligations in order to deal with public emergencies. When a state finds itself in a state of emergency, some civil-political human rights may be temporarily restricted (“derogation”, Article 4, ICCPR). However, a state of emergency always has to be officially declared and accounted for, and has to be limited in time. Some human rights like the prohibition of torture cannot be derogated under any circumstances. All other human rights treaties do not allow the temporary derogation of particular rights in a state of emergency.

What are reservations, declarations and denunciations of human rights treaties?

A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that state. A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply. Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.

Denunciations, if a treaty explicitly permits it, as does for example article 52 of the International Convention on Children Rights. However, the International Covenant on Civil and Political Rights (ICCPR), its Second Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination against Women and the International Convention Disappearance do not permit a denunciation of the treaty. Regarding the ICCPR, this was confirmed by the Human Rights Committee in its General Comment No. 26 on the continuity of obligations from 1997. Before, the committee had already declined North Korea’s denunciation and Jamaica’s denunciation from the Second Optional Protocol to the ICCPR.

Which human rights system allows actio popularis application?

Actio pupolaris presents in itself a collective complaint procedure. It is possible to be done under European Social Charter through the Committee of Social Rights as well as under Inter-American and African regional human rights systems.

Under the European Social Charter, because of their collective nature, complaints may only raise questions concerning non-compliance of a State’s law or practice with one of the provisions of the Charter. Individual situations may not be submitted. In the light of this, complaints may be lodged without domestic remedies having been exhausted and without the claimant organisation necessarily being a victim of the relevant violation.

positive and negative human rights obligations of states

Positive obligations in human rights law denote a State's obligation to engage in an activity to secure the effective enjoyment of a fundamental right, as opposed to the classical negative obligation to merely abstain from human rights violations.

Classical human rights, such as the right to life or freedom of expression, are formulated or understood as prohibitions for the State to act in a way that would violate these rights. Thus, they would imply an obligation for the State not to kill, or an obligation for the State not to impose press censorship. Modern or social rights, on the other hand, imply an obligation for the State to become active, such as to secure individuals' rights to education or employment by building schools and maintaining a healthy economy. Such social rights are generally more difficult to enforce.

Positive obligations transpose the concept of State obligations to become active into the field of classical human rights. Thus, in order to secure an individual's right to family life, the State may not only be obliged to refrain from interference therein, but positively to facilitate for example family reunions or parents' access to their children.

The most prominent field of application of positive obligations is Article 8 of the European Convention on Human Rights.

the negative obligations, which essentially require states not to interfere in the exercise of rights.

positive and negative human rights

 Negative and positive rights are rights that respectively oblige either action (positive rights) or inaction (negative rights). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.

Rights considered negative rights may include civil and political rights such as freedom of speech, life, private property, freedom from violent crime, freedom of religion, habeas corpus, a fair trial, freedom from slavery.

Rights considered positive rights, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.

non-derogable and qualified human rights.

Non-derogable rights are those rights which are prescribed to every individual by core Human Rights documents and can’t be taken away. Unconditional.

List of Non-Derogable Rights and Freedoms

under Article 4 of the International Covenant on Civil and Political Rights

· Prohibitions of genocide, slavery, and racial discrimination

· Right to: life, freedom from torture & inhumane treatment, fair trial, freedom of conscience, thought and religion

erga omnes

obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the protection of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy and genocide. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case (Belgium v Spain)

Human rights generations

First-generation human rights, often called "blue" rights: deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, the right to life, equality before the law, freedom of speech, the right to a fair trial, freedom of religion, and voting rights.

Second-generation human rights “socio-economic” human rights guarantee equal conditions and treatment. They are not rights directly possessed by individuals but constitute positive duties upon the government to respect and fulfill them. Socio-economic rights began to be recognized by government after World War II and, like first-generation rights, are embodied in Articles 22 to 27 of the Universal Declaration. They are also enumerated in the International Covenant on Economic, Social, and Cultural Rights.

Third-generation human rights These rights have a positive consecration, generally in international law. Third-generation human rights are those rights that go beyond the mere civil and social, as expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development.

The rights in this category cannot be exerted individually, but only by groups or collectivities of people.

The term "third-generation human rights" remains largely unofficial, and thus houses an extremely broad spectrum of rights.

What is indivisibility and interdependence of human rights?

Human rights are indivisible. Whether they relate to civil, cultural, economic, political or social issues, human rights are inherent to the dignity of every human person. Consequently, all human rights have equal status, and cannot be positioned in a hierarchical order. Denial of one right invariably impedes enjoyment of other rights. Thus, the right of everyone to an adequate standard of living cannot be compromised at the expense of other rights, such as the right to health or the right to education.

Human rights are interdependent and interrelated. Each one contributes to the realization of a person’s human dignity through the satisfaction of his or her developmental, physical, psychological and spiritual needs. The fulfilment of one right often depends, wholly or in part, upon the fulfilment of others. For instance, fulfilment of the right to health may depend, in certain circumstances, on fulfilment of the right to development, to education or to information.

What is cultural relativism?

Cultural relativism is the view that all beliefs, customs, and ethics are relative to the individual within his own social context. In other words, “right” and “wrong” are culture-specific; what is considered moral in one society may be considered immoral in another, and, since no universal standard of morality exists, no one has the right to judge another society’s customs.

What does the universality of human rights mean?

human rights are the same regardless of race, color, culture or religion and should be applied to all people, regardless of gender, race, age or ethnicity. simply because one is a human being without distinction of any kind such as origin, nationality, race, sex, political or religious affiliation and should be equally protected.

What are the structural principles of human rights law?

1-     Proportionality: Limitations are based on legitimate aims: public safety, security, public order, rights and freedoms of others.

Proportionality test: legitimate aim, suitability, necessity.

2-     incompatibility and balancing – it applies to equal rights (example: right to freedom of expression v. right to freedom of religion); Judicial restraint – giving a case back to the legislator

3-     Subsidiarity: structural; procedural; substantive

4-     Procedural subsidiarity: exhaustion of domestic remedies; remedial subsidiarity; the margin of appreciation/discretion.

5-     Sovereignty: political intervention; control over the persons and objects; immunity of the state and officials.

6-     Solidarity: humanitarian issues; environment; responsibility to protect (prevent, respond, rebuild); problems (Security Council, positive and negative impact of the responsibility)

7-     Equality: formal and substantive equality: Equality of opportunity and equality of outcome.