There are currently 47 member states in the Council of Europe (COE), representing great headway in the project to integrate Europe. Membership in COE purportedly commits a state to abide by the European Convention on Human Rights ('the Convention'). Where disputes arise with respect to whether the Convention is being violated by a member state, the European Court of Human Rights (“the Court”) gives deference to a member state’s determination that its domestic laws meet the requirements of the Convention.
This 'margin of appreciation' allows the Court to recognize and accept differing interpretations of what a state must do to grant those within its borders the fundamental rights and freedoms provided for in the Convention. In actuality, this has meant that 'religious liberty' in France (where the hijab or Islamic headscarf is prohibited in public schools) entails a lot less liberty than does “religious liberty” in Sweden (where the hijab may be worn in the public schools).
I argue in the attached conference paper that the Convention should be amended to add an Equal Protection Clause (similar to the U.S. 14th Amendment) and, further, that the Court should abandon the 'margin of appreciation' doctrine. Would getting rid of the 'margin of appreciation' doctrine be disastrous in that it would end all hope of continued progress toward a unification of European states? Might abandoning the 'margin of appreciation' actually result in some states seceding from COE membership?
Conference Paper Courting Justice; Flirting with Unity: Moving Beyond the "Ma...
Although this question has not attracted any responses so far, it deals with the same "cultural imperialism" vs. "cultural relativism" debate brought to light in the abundance of responses (over 100) to an RG question I posed on secularism. Several of the responders to that question feel that the dominant Christian culture in the U.S. justifies public bodies opening their sessions with a Christian prayer and that non-Christians transacting business with that public body should just "suck it up" since they are in the minority in the U.S. -- a predominantly Christian nation.
Those with this "When in Rome, do as the Romans do" philosophy would no doubt argue strongly for maintaining the 'margin of appreciation' that allows the European Court of Human Rights to respect the dominant religio-cultural heritage of a COE member state in judging whether the Article 9 mandate for religious liberty is being violated by the domestic laws of a particular member state. Thus, in states like France, Switzerland, and Turkey with a national heritage/identity that encompasses secularism, this state-proclaimed social policy would trump any legal concern for "equal protection" under the European Convention on Human Rights for Muslims living in, say, France (vs. Muslims living in Sweden where the hijab is allowed).
The realization that moral philosophy (or, perhaps "might makes right") rather than law is generating the multitude of responses to the secularism question is prompting me to change the tags on this question in order to attract interest from RG scholars in the field of Business Ethics where "cultural imperialism" and "cultural relativism" are familiar theoretical concepts that are used to discuss the moral obligations of multinational corporations (MNCs) operating in the global marketplace. There the issue is whether MNCs are justified in taking advantage of the weaker labor laws and environmental protection laws found in developing nations to maximize corporate profits; i.e., putting under a critical lens the morality of MNCs running their offshore operations as sweatshops under the guise of "respecting the local culture".
Gwen
Gwen,
I would assume that the idea is that at first you persuade them to join and make them pay at least lip service to the Convention, with the idea being that later the standards will be tightened. I am not at all convinced that this is the best approach, and I suggest that while you're porbably right that some members might leave over being required to meet a higher standardon human rights, it would still be worth it. And over time those members might come back.
I just saw this question, and haven't been able to make RG cough up the other question to which you refer. But it seems clear to me that the founders who wrote the Constitution of the United States intended to separate church from state, which makes people who use state functions to push their religions on others guilty of treason. I have lived in countries where a state religion (Islam) was legally enforced and other religious views were legally suppressed. I have had conversations with people who lived in the Soviet Union when atheism was legally enforced. I would never want to live again in a country where any religious views, mine or not, were the official ones.
Hi Clyde,
Thank you so much for your detailed and enlightened response to this question. You are indeed at an advantage having lived in countries where “might makes right” so that you know what of you speak.
With respect to luring countries into the COE by lowering the standards and then raising them once “culturally chauvinistic” countries have joined (what we lawyers call “entrapment”), that has not been necessary. This is because some countries (like Russia) have been allowed to join COE without fully committing to the particular Articles of the Convention on Human Rights that they find “inconvenient” in light of their own domestic agenda.
Thus, “bait and switch” is not really an option. The real dilemma is whether the European Court of Human Rights will somehow (maybe through prayer) acquire sufficient mettle someday down the line to fully enforce the Article 9 mandate for religious liberty and thereby risk losing some noncompliant and obstinate members of COE who do as they like (in addition to Russia, this includes France and Switzerland with their anti-Muslim laws and ordinances – no headscarves, no Minarets) while still flying the banner of COE membership.
Clyde, you are certainly welcome to join the fray on the other question I mentioned which deals with the same issues (and which has attracted over 100 heartfelt responses). You will find it here:
https://www.researchgate.net/post/Is_it_inconsistent_with_the_principle_of_Secularism_to_allow_public_bodies_to_open_their_public_meetings_with_prayers
Gwen
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