The margin of appreciation doctrine : a legitimate device or the trojan horse of the European convention for the protection of human rights and fundamental freedoms?

Abstract

By conferring on States Parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) a certain amount of discretion in some cases, the doctrine of the margin of appreciation plays a part in determining whether particular factual circumstances amount to violations of Convention rights or otherwise. This thesis analyses the development and use of the concept of the margin of appreciation and the arguments justifying or condemning the same. Since the margin doctrine is an interpretative technique deployed by the European Court of Human Rights and is not expressly written into the ECHR text but has been developed through the case-law of the Court, the INTRODUCTION seeks to ground the margin doctrine in the context of the interpretative practices of the Strasbourg Court. This section also illustrates the extent to which the doctrine may derive support from the textual basis of the Convention itself. The margin doctrine is problematic insofar as it does not fit comfortably with the notion of universality of human rights and at the same time does not constitute a wholehearted embrace of relativism. CHAPTER ONE, therefore, approaches the question of the justification or condemnation of the doctrine by analysing the margin of appreciation from the point of view of legal theory and philosophy, and – in particular – by expounding on the debate between theories of universality and notions of relativity in human rights law. A survey in CHAPTERS TWO to FOUR of the origins and expansion of margin doctrine within Strasbourg case-law reveals the constant assertion, at least in theory, of the Strasbourg Court as to its power to review the extent of the allowable margin. A survey in CHAPTERS TWO to FOUR of the origins and expansion of margin doctrine within Strasbourg case-law reveals the constant assertion, at least in theory, of the Strasbourg Court as to its power to review the extent of the allowable margin. On the other hand, the practical application of the doctrine sometimes leads to diametrically opposed trends in different judgments which deal with similar issues. Particularly in the context of Articles 8 to 11 of the Convention, the doctrine seems to be more readily employed, and the given margin less easily disturbed, where sensitive or controversial issues are at stake. The evolving jurisprudence under Article 2 has also been infiltrated by margin analysis in ways which contrast with the general application of the doctrine, thereby bringing the justifiability of the doctrine under even greater strain. Although the margin doctrine is applicable only at the level of the Strasbourg Court, national Courts have developed a comparable technique (albeit one step down the ladder) in affording the national legislative and administrative authorities with a measure of discretion when dealing with certain Convention rights. The Maltese jurisprudential record also indicates that margin analysis is influencing the language of the Courts in areas not necessarily linked to the law of the Convention. CHAPTER FIVE also explores alternative avenues to the margin doctrine by looking at the practice of other supranational or international judicial bodies. It appears that, whereas the margin of appreciation doctrine has on occasions been employed by such judicial organs, these Courts have by and large retained an ability to adjudicate on human rights matters without systematic recourse to a margin of appreciation doctrine or a truly comparable technique. This would seem to suggest that the doctrine may not be an indispensable part of the ECtHR’s interpretative armour, although the Court’s ever-increasing references to it show no signs of abandoning the same. In CONCLUSION, and taking into account the universality-relativity debate as well as the practical application of the doctrine to the text of the Convention in the light of the facts of particular cases, the use of the doctrine under some of the Articles of the Convention may appear more easily justifiable than others. The doctrine, however, is capable of leading to widely divergent results and is developed and applied on a caseby-case basis by the Strasbourg Court. Whether the doctrine is to be accepted as legitimate, or whether it is objectionable on grounds of principle or in its practical application, the margin of appreciation has become a well-established technique of judicial decision-making within ECtHR case-law.