The Margin of Appreciation as an Underenforcement Doctrine

extending the scope of rights far beyond that provided for in the text." Critically analyse the above statement.

German Law Journal, 2006

What is so fundamental in terms of the protection of human rights in Europe that it requires the same standards for all countries and what, by contrast, would be better dealt with by each State’s organs in line with verbigratia Michael Walzer’s-related notion of “thick morality”?. Where should the line be drawn between unity and diversity notwithstanding the resulting risk of human rights cultural relativism associated to the latter?. On what grounds could the axiomatic universality of human rights possibly be connoted in a continent which prides itself on possessing the most developed regional system for the protection of human rights world-wide in view of the resulting risk of legal contagion to other systems for the protection of human rights and, even, to general international law that such a practice can trigger?. At the end of the day, these are the sort of questions that the study of the margin-of- appreciation doctrine raises.

European Court of Human Rights – Subsidiarity – Margin of appreciation – Deference – Theorising the margin of appreciation based on a large case law study – The ‘systemic’ (rethought ‘structural’) element of the margin of appreciation relies on a functional rationale related to the distribution of tasks within the European system for the protection of human rights and is based on non-merits reasons – The ‘normative’ (rethought ‘substantive’) element reflects normative flexibility and is based on merits reasons – Both margins reflect the principle of subsidiarity – The two margins most often interact in partial deference but the systemic margin can also lead to complete deference – Presumptions of complete deference in the case law of the Court – Implications of increased reliance on the systemic margin as the Court moves emphasis from substantive’ to ‘procedural’ review.

Legal Studies, 2015

Current Legal Problems, 2014

The doctrine of the margin of appreciation may be regarded as being among the most prominent judge-made legal constructs in European human rights jurisprudence. It is an analytical tool that guides the European Court in its examination of the complaints raised under many, but not all, provisions of the Convention and its Protocols. It makes for a body of human rights law that accepts pluralism over uniformity, as long as the fundamental guarantees are effectively observed. Alongside its normative function, the doctrine pursues what may be termed a systemic objective. It devolves a large measure of responsibility for scrutinising the acts or omissions of national authorities to the national courts, placing them in their natural, primary role in the protection of human rights. It is therefore neither a gift nor a concession, but more an incentive to the domestic judge to conduct the necessary Convention review, realising in this way the principle of subsidiarity. Protocol No. 15, adopted in May 2013 and currently in the process of ratification by the 47 Contracting Parties, will add to the Preamble of the Convention references to both the margin of appreciation and subsidiarity. What are the implications of this reform for the Strasbourg Court? And for national courts?

International Journal of Constitutional Law, 2023

This reply offers some critical reflections that tie into the assumptions of Eva Brem’s interesting study of the risk of national authorities’ misunderstandings of the margin of appreciation conceded by the European Court of Human Rights (ECtHR). Taking on board a cooperative conception of the principle of subsidiarity, this reply first questions the adequacy of the distinction between a systemic and a normative dimension of the margin of appreciation as the proper basis for assessing the risk of domestic misunderstanding of the margin of appreciation. Next, it raises some objections to the analysis that Brems makes of the ECtHR judgment in S.A.S. v. France, particularly her application of the normative dimension of the margin of appreciation to this example of possible misunderstanding. The reply argues that Brems’s assumption that the ECtHR conducted a procedural rationality review of the French burqa ban minimizes Strasbourg’s own contribution to the risk that other states, in similar cases, may misunderstand how human rights are to be applied to avoid misinterpreting their national margin of appreciation.

The second decision of the European Court of Human Rights in the Lautsi case on crucifixes in Italian state-school classrooms is almost entirely grounded on the margin of appreciation doctrine. This article describes the doctrine as developed by the European Court of Human Rights and, on the basis of the distinction between ‘hard cases’ and ‘easy cases’, attempts to show one counter-intuitive consequence of the doctrine. Taken seriously, the doctrine seems to imply that the European Court of Human Rights is the exemplar of a court that enjoys no discretion. This construction cannot be accepted. Two other reconstructions are more plausible: the margin of appreciation can be considered as a canon of interpretation or, alternatively, as a proportionality test. The present article argues that both reconstructions entail certain normative consequences for the way in which the European Court should have reasoned in the Lautsi case.

2007

Victoria University of Wellington Law Review

This "think piece," which is aimed at contributing to the debate over a Pacific human rights mechanism, firstly identifies and exemplifies some of the challenges between tradition and culture and human rights embodied in the main human rights conventions. Part III gives a brief overview of the doctrine of margin of appreciation as used by the European Court of Human Rights. The last Part analyses whether the doctrine of margin of appreciation will be able to withstand and adequately balance any "challenges" from the unique traditions and culture of the Pacific. This essay is intended as the beginning of a dialogue over the value of a margin of appreciation approach in the Pacific, as opposed to a contribution as such to the enormous literature on the margin of appreciation approach in Europe. It argues that there is much use in framing some of the Pacific debates over the application of human rights through the European approach.