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Cameron Government Versus European Court of Human Rights: A Time to Not Act

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On 18-20 April, European leaders will come together in Brighton, United Kingdom, to decide the future of the European Court of Human Rights. The importance of this meeting - and the potential for damage - cannot be overstated. For over 50 years, the European Court on Human Rights has helped define state obligations and individuals rights in jurisprudence that is readily cited in national and regional courts worldwide.

Over the years, the Court has clarified that states cannot criminalise same-sex relations, must provide pre-emptive protection to prevent domestic violence from happening in the first place, and has to make access to legal abortion effective, including by providing services. That's in addition to the many cases dealing with the absolute prohibition of torture, equal access to justice, and compensation for discrimination and abuse.

Of course, the court has not been perfect. A key reason for this has been its unequal application of the so-called 'margin of appreciation', a legal concept that is meant to allow governments some room to determine how they plan to fulfil a specific human right within their territory, while not relinquishing the most basic concept behind human rights: that they are universal and apply equally to everyone.

The court has used this concept, among other things, to abdicate responsibility on sex education and broadening access to necessary health care. And while it is absolutely true that human rights are not implemented in a cultural and historical vacuum, it is also true that if the main adjudicator of what is right and what is wrong adopts a relativist and overly subjective approach to making that determination, the very idea that human dignity can be protected is at stake.

In Brighton this week, the UK and some other governments will actively seek to broaden the application of the 'margin of appreciation'. In fact, these governments are so hell-bent on hampering the European Court of Human Rights' ability to determine when they have violated the dignity and livelihood of those living in their territory that they hope to prevent cases from reaching the court in the first place, by giving "margin of appreciation" a meaning it never had.

So far, the court has deferred to governments through the 'margin of appreciation' only when a case has reached the level of substantive discussion, and not in its determination of whether an individual is allowed to bring a case or whether the subject matter is within the court's jurisdiction.

In other words, even where the court has given states wider wiggle-room to limit human rights than one might desire, the individual whose rights were at stake had her or his day in court.

In advance of the Brighton meeting, the UK government has circulated a proposal that would require the court to defer overly to national courts, even before it looks at a case at all. The proposal urges the court to refuse to hear most cases in which the national court has already applied the European Convention of Human Rights in its deliberations.

It is easy to imagine a situation where a national court is unaware of the proper application, status, and scope of legislation and precedents its judges have limited experience with. But more damningly, the proposal undermines the very objective of the European Court of Human Rights: as an additional forum of appeal for human rights issues that may not have been adequately considered at home.

If this proposal is adopted, the UK would have succeeded in limiting oversight of its own human rights practices (and there are any number of issues that merit review). The UK would, however, also have succeeded in significantly weakening an institution that helps--even if at times imperfectly--to uphold standards celebrated worldwide as necessary and just.

All eyes should be on Brighton this week to ensure that the European Court of Human Rights is allowed to do its job: hold governments to their promise to protect the human rights of all.

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