Diversity or commonality? The power to toss the human rights coin

Abstract

The article highlights the paradox which arises from the fact that human rights aims both at protecting the minority against the majority and at establishing common standards. The crucial question is not whether human rights protect difference or establish common standards, but which difference and which commonality they value. This question is examined with reference to the European Convention on Human Rights system. Depending on which side of the coin - diversity or commonality - the European Court on Human Rights chooses to reveal, its reasoning tends to rely on either the doctrine of the margin of appreciation or the presence of a common denominator among State Parties. These tools are not scientific and do not describe the relevant empirical legal reality objectively; they are best seen as ideological tools which justify judicial decisions based on political values. This points to the absence of neutrality in the judicial process, although not necessarily to arbitrariness, for political agendas can be pursued with coherence or at least honesty. The political nature of human rights decisions nonetheless needs to be understood and discussed as such, by all of us.