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The Margin of Appreciation Doctrine in the European Court of Human Rights

Published online by Cambridge University Press:  17 January 2008

Michael R. Hutchinson
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Extract

The margin of appreciation doctrine has become a fundamental part of the jurisprudence of the European Court of Human Rights. It has played a central role in most of the cases decided by that Court, including many of its most significant and controversial, and until recently has been the subject of remarkably little analysis. However, there has been a spate of interest in the doctrine in the last year or so.1 Most of this debate has concerned the details of how the margin of appreciation operates in the context of particular articles of the European Convention on Human Rights. This article's purpose is to look at the wider picture. After an outline of the essential characteristics of the doctrine, I will examine the nature of the margin and its role in adjudication. I will suggest that there are logical flaws in the margin as currently conceived, and that these undermine the quality and coherence of the Court's judgments.

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 638 - 650
Copyright
Copyright © British Institute of International and Comparative Law 1999

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References

1. See recent articles: Paul Mahoney, “Marvellous Richness of Diversity or Invidious Cultural Relativism”, Johan Callewaert, “Is There a Margin of Appreciation in the Application of Articles 2, 3 and 4 of the Convention?”, Clare Ovey, “The Margin of Appreciation and Article 8 of the Convention”, Søren Prebensen, “The Margin of Appreciation and Articles 9, 10 and 11 of the Convention”, Yves Winisdoerffer, “Margin of Appreciation and Article 1 of Protocol 1”, Jeroen Schokkenbroek, “The Prohibition of Discrimination in Article 14 of the Convention and the Margin of Appreciation”, Michael O'Boyle, “The Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle?” and Jeroen Schokkenbroek “The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights”, all in the report of a seminar on the subject held under the auspices of the Registry of the Court reproduced at 19 H.R.L.J., Apr. 1998. Also, Paul, Mahoney, “Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments” [1997] E.H.R.L.R. 364Google Scholar, Lord Lester of Herne Hill, “Universality versus Subsidiarity: a Reply” [1998] E.H.R.L.R. 73Google Scholar, Nicholas, Lavender, “The Problem of the Margin of Appreciation” [1997] E.H.R.L.R. 380.Google Scholar For a more comprehensive overview see Charles, Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996).Google Scholar

2. E.Ct.H.R. Ser.A/24, 1976.Google Scholar

3. The full Commission report on Cyprus v. UK was not published, but the Commission did state that, in its opinion, a State government “should be able to exercise a certain measure of discretion in assessing the extent strictly required by the exigencies of the situation” (1958–59) 2 Y.B.E.C.H.R. It was this discretion that grew, via the Lawless v. Ireland case, Ser.A/3, into the margin as expressed in Handyside.

4. E.Ct.H.R. Ser.B, 1960–1961, para.90, p.82.Google Scholar

5. Handyside, supra n.2, at p.22.Google Scholar

6. Ibid.

7. Sunday Times v. UK (No.1) Ser.A/30, pp.36–37Google Scholar, where there was said to be a consensus on what limitations on freedom of speech could be said to be necessary to protect the independence of the judiciary. On the question of the factors influencing width in general, see Schokkenbroek, , op. cit. supra n.1, at pp.34–35, and Ovey, also op. cit. supra n.1.Google Scholar

8. Handyside, supra n.2, at p.22.Google Scholar The case concerned the banning of a book on the grounds that this was necessary to protect morals, under Art.10(2).

9. Van, Dijk and Van, Hoof, Theory and Practice of the European Convention on Human Rights (3rd edn, 1998), p.88.Google Scholar

10. Leander v. Sweden, Ser.A/116, p.43.Google Scholar

11. On the field of application of the margin, See Van, Dijk and Van, Hoof, op. cit. supra n.9, pp.87–88. See also Ovey, Prebensen and Lavender, all op. cit. supra n.1Google Scholar

12. E.Ct.H.R. Ser.A/45.

13. Lester, op. cit. supra n.1, esp. at pp.78–79.Google ScholarSee also by the same author “The European Convention on Human Rights in the New Architecture of Europe”, in Proceedings of the 8th International Colloquium on the European Convention on Human Rights (1996), p.227.Google ScholarVan, Dijk and Van, Hoof, op. cit. supra n.9, at p.93.Google Scholar

14. E.Ct.H.R. Ser.A/295–A. Lester, op. cit. supra n.1, at pp.79–80.Google Scholar

15. Lester, idem, p.80.

16. Although Delmas-Marty, M., “The Richness of Underlying Legal Reasoning”, in Delmas-Marty, (Ed.), The European Convention for the Protection of Human Rights (1992) makes a valuable contribution, which is drawn on to some extent in what follows.Google Scholar

17. Mahoney, (1997), op. cit. supra n.1, at p.369. Emphasis in original.Google Scholar

18. Ibid.

19. Handyside, supra n.2, at pp.22–23.Google Scholar

20. Some of the Court's cases do give a clear indication of where limits lie, e.g. Gaskin v. UK Ser.A/160, concerned Art.8 and the denial to the applicant of access to records concerning his period in State care at a young age. A breach of the Convention was found, and the Court gave quite detailed descriptions of what provisions would be required to move the State's social security provisions to within the margin, i.e., where the floor was located: idem, p.20. However, this is rare.

21. Guardian and Observer v. UK Ser.A/216, para.63, p.32.Google Scholar

22. E.g. in Handyside, supra n.2, where the lack of a uniform European view on morals prompted a wide margin.

23. See supra n.17.

24. Supra n.4, at pp.395–396.Google Scholar

25. See supra n.14.

26. Goodwin v. UK (1997) 22 E.H.R.R. 123.Google ScholarSee the articles by Lester and Mahoney (1997) both op. cit. supra n.1.Google Scholar

27. See text accompanying supra n. 19.

28. Although the need to produce a majority judgment involving the consensus of several judges also undoubtedly has an influence on this.

29. E.Ct.H.R. Ser.A/258–B.

30. See idem, p.54.

31. E.Ct.H.R. Ser.A/25.

32. Belgian Linguistics Case, Ser.A/6, p.34.Google Scholar

33. Although the Court's application of the Belgian Linguistics criteria was not especially clear. The Court failed to make clear from the outset whether a distinction had in fact been made. This has to be implied from the rest of the judgment, and there was a tendency to equate the explanations for the distinction with actual justifications, without any real examination of whether this was indeed the case: Ser.A/25, pp.86et seq.Google Scholar

34. Idem, p.86. Emphasis added.

35. Idem, para.229, p.87.

36. The Court's confusion in this case had its roots in its having to consider different stages of an evolving situation. This meant that the central norm changed as the situation changed, and, as the Court traced its development, it became rather clearer than the Court might have wished.

37. E.g. the criticisms of Professor Colin Warbrick of Court decisions under Art.8, [1997] E.H.R.L.R. 32.Google Scholar He suggests that these have displayed some degree of both incoherence and arbitrariness. Such criticisms of Court jurisprudence are relatively common.

38. See text accompanying supra n.5.

39. O'Boyle, , op. cit. supra n.1, at p.26.Google Scholar It is hard tofindany clear analysis of the margin in the jurisprudence, as it quickly became accepted as part of the Court's decision-making process. Such analysis as there has been in cases such as Handyside is consistent with O'Boyle's analysis, with the main emphasis on the subsidiary nature of the Convention system.

40. See e.g. Handyside, supra n.2, at p.22.Google Scholar

41. See e.g. Wingove v. UK (1997) 24 E.H.R.R. 1, Handysideidem, Otto-Preminger, supra n.14.Google Scholar

42. Dudgeon, supra n.12.

43. This factor in determining the width of the margin shows a clear link with the question of consensus; See Prebensen, and Ovey, , both op. cit. supra n.1, at pp.14, 11–12 respectively.Google Scholar

44. As shown above, this is particularly the case where the factors lead towards a wide margin.

45. See Michael, Addo, “Are Judges Beyond Criticism under Article 10 of the European Convention on Human Rights?” (1998) 47 I.C.L.Q. 425.Google Scholar

46. O'Boyle, , op. cit. supra n.1, at p.29.Google Scholar