Margin of appreciation
The margin of appreciation (or margin of state discretion) is a doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights, to judge whether a state party to the European Convention on Human Rights should be sanctioned for derogations. The doctrine allows the Court to reconcile practical differences in implementing the articles of the Convention. Such differences create a limited right, for Contracting Parties, "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention, as a supervisory framework for human rights. In applying this discretion, European Court judges must take into account differences between domestic laws of the Contracting States as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of European Union law. The purpose of the margin of appreciation is to balance individual rights with national interests, as well as resolve any potential conflicts. It has been suggested that the European Court should generally refer back to the State's decision, as they are an international court instead of a bill of rights.
Definition and origins
The phrase margin of appreciation is a literal translation of the French "marge d'appréciation". The latter phrase refers to a notion of administrative law that was developed by the Conseil d'Etat, but equivalent concepts have also emerged in every other civil jurisdiction. At the level of the European Convention on Human Rights, a margin of appreciation refers to some "latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies". This is an intermediary norm in the jurisprudence of the European Court of Human Rights. It allows for some compromise between the aspirations of the Convention and the circumstances faced by a Contracting Party. This doctrine of administrative discretion first gained national levels of prominence, most notably under the German Bundesverwaltungsgericht (or Supreme Administrative Court), before it was translated into a doctrine of supervisory discretion for a regional context.
The concept of a margin of appreciation at the European level emerged through questions surrounding martial law. It was introduced to European Convention jurisprudence in 1956. This occurred through an opinion of the European Commission of Human Rights—in a Cyprus case—to permit the United Kingdom, under Article 15, to derogate from its obligations in a time of public emergency. Subsequently, the hearing for Lawless v Ireland (that is, the first formally decided case of the Court) included an oral argument from the Commission President Sir Humphrey Waldock that:
"...a Government's discharge of...responsibilities [in maintaining law and order] is essentially a delicate problem of appreciating complex factors and of balancing conflicting considerations of the public interest; and that, once the...Court is satisfied that the Government's appreciation is at least on the margin of powers..., then the interest which the public itself has in effective Government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government's appreciation."
Later, the "Belgian Linguistic Case (No. 2)" of 1968 introduced a margin of appreciation to circumstances that fell outside emergency situations that were identified by Article 15 of the European Convention. This case proved to be critical in establishing a wide scope for the emerging doctrine of discretion. It identified two key elements for establishing a margin of appreciation: a focused consensus standard among 'Convention signatory states', as well as a proportionality principle in the jurisprudence of the European Convention. The latter element consisted of two weighting factors, which are necessary to establish the extent of a particular margin. These factors are the 'nature of the right' in question, as well as 'the aim pursued by the contested measure'. With an expansive doctrine in view, the European Court also sought to constrain itself by stating that:
'...the Court cannot disregard those legal and factual features which characterize the life of the society in the State which...has to answer for the measure in dispute. In so doing, it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established for the Convention.'
The margin of appreciation doctrine received considerable development in 1976, with the Court decision of Handyside v United Kingdom. This concerned the publication of a Danish textbook for primary school children, in which sexual behaviour was discussed using explicit terms. It was successfully published in several signatory states, but was met with controversy in the United Kingdom. Handyside, an English publisher, was convicted for violating domestic laws on obscene publications. The case that was brought before the European Court challenged whether the United Kingdom could infringe freedom of expression, under Article 10, on the ground of protecting moral norms. The fact that the "Little Red Schoolbook" had been received in other European countries formed a basis for this challenge. However, the Court permitted the imposed limitation on freedom of expression and found no violation of the Convention. It held that:
'...it is not possible to find in the domestic law of the Contracting States a uniform conception of morals. The view taken by their respective laws...varies from time to time and from place to place...By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them.'
With this judgment, the European Court reinforced its distinction between the supervisory jurisdiction of the Convention framework and domestic forms of discretion. However, it also affirmed that:
'The Court...is empowered to give a final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression as protected by Article 10. The domestic margin of appreciation thus goes hand in hand with a European supervision.'
Scope and application
The European Court decision in Handyside v United Kingdom framed the margin of appreciation doctrine in terms of a systemic tension in the European Convention framework. It is therefore easy to distort the concept, in a negative sense, 'to circumvent the express requirements of the Convention'. However, the official position of the Court is that a margin of appreciation must be derived from 'a just balance between the protection of the general interest of the community and the respect due to fundamental human rights while attaching particular importance to the latter.' This precedent illustrates some continuity between the original function of a margin of appreciation—as a justified derogation simpliciter—and its present purpose of delimiting rights and freedoms for individuals in relation to state parties. Yet a clear distinction has also been made between this latter substantive purpose, which evolved over time, as well as the structural aim of the doctrine. The structural purpose for a margin of appreciation was to construct 'a geographically and cultural plural notion of implementation'. As a result of this, the doctrine has continued to subsist in an unstructured set of elements. This is possible, because the foundation concept of a margin is essentially abstract in nature and less connected to the core purposes of the Convention—especially when it is compared with other interpretive principles, such as legality or the effective protection of rights.
As justification for any derogation from the European Convention ultimately rests on the concept of democratic necessity in a society, margins of appreciation are situation-oriented and the case law regarding this subject frequently lacks consistency. The expanded margin of appreciation doctrine has been used to interpret European Convention guarantees regarding due process (that is, Articles 5 and 6) and personal freedoms (that is, Articles 8-11). This infused the doctrine with a sense of ubiquity and has led to its invocation in major legal developments, including challenges surrounding discrimination as they relate to human rights. However, the doctrine has also been invoked in such varied questions as the enjoyment of possessions, the use of religious symbols  and the implementation of environmental policies and regulations. The margin of appreciation in each of these categories of cases has differed according to the kind of right in question; for example, where private individuals are more directly involved, less discretion is typically permitted to the discretion of state parties. Naturally, this criterion comes under just one of the three criteria—that is, the nature of the right, the aims pursued, as well as the presence or absence of a European consensus—that are used to determine the scope of any given margin. As the European Court decided in Dickson v United Kingdom:
'Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider. This is particularly so where the case raises complex issues and choices of social strategy...There will also usually be a wide margin accorded if the State is required to strike a balance between competing private and public interests or Convention rights.'
The margin of appreciation doctrine has gained sufficient prominence, under an emerging principle of subsidiarity, to merit impending incorporation into the Preamble of the European Convention. This formal acknowledgment indicates awareness, on the part of the Council of Europe, that the evolution of the Convention must include jurisprudence that justifies the application of this doctrine in so many different issues. The margin of appreciation doctrine may also expand further throughout international law. This is because its underlying concept of a derogation being "necessary in a democratic society"—as it is provided for in the European Convention—also resonates with other international human rights regimes. Although many regimes remain formally ambivalent (or even negative) towards margins of appreciation, the growing influence of Convention law on international norms is, in turn, making the doctrine more attractive to the global community.
- Application No. 176/56 (Greece v United Kingdom, "Cyprus"), 2 Yearbook of the European Convention 1958-1959, 174-199 at 176.
- The Sunday Times v United Kingdom, no. 6538/74, § 61, ECHR 1979 A30.
- "Roffee, J. A. (2014). No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights". doi:10.1093/hrlr/ngu023].
- H.C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (Martinus Nijhoff, Dordrecht, 1996) at 13.
- P. van Dijk, et al. (ed.s) Theory and Practice of the European Convention on Human Rights (Fourth Edition) (Intersentia, Antwerpen, 2006) at 1055-1056.
- Lawless v Ireland, no. 332/57, ECHR 1961 A3 (N.B. verbatim record of the hearing on 8 April). Cited in J. Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (Koninklijke Brill NV, Leiden, 2009) at 244.
- Yourow (1996), above n 6, at 30-31.
- P. Alston and R. Goodman, International Human Rights: Text and Materials (the Successor to International Human Rights in Context) (Oxford University Press, Oxford, 2013) at 946.
- Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium ("Belgian Linguistic Case") (No. 2), no. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, §10, ECHR 1968 A6.
- Handyside v United Kingdom, no. 5493/72, §48, ECHR 1976 A24.
- Ibid., §49.
- C.S. Feingold, "The Doctrine of Margin of Appreciation and the European Convention on Human Rights" (1977-1978) 53 Notre Dame Law 90 at 105.
- "Belgian Linguistic Case" (No. 2), above n 6, §5.
- G. Letsas, "Two Concepts of the Margin of Appreciation", Oxford Journal of Legal Studies, 26 (2006) 4, 705-732.
- F. Mégret, 'Nature of Obligations'; in D. Moeckli et al., International Human Rights Law (Second Edition) (Oxford University Press, Oxford, 2014) at 104.
- S. Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge, 2006) at 194.
- Y. Arai, "The System of Restrictions"; in P. van Dijk, et al., above n 4, at 340.
- See, for example, Dudgeon v United Kingdom, no. 7525/76, ECHR 1981 A45; ADT v United Kingdom, no. 35765/97, ECHR 2000-IX; and, Goodwin v United Kingdom, no. 28957/95, ECHR 2002-VI.
- See, for example, Stummer v Austria, no. 37452/02, ECHR 2011.
- See, for example, Lautsi v Italy, no. 30814/06, ECHR 2011.
- See, for example, Hardy & Maile v United Kingdom, no. 31965/07, ECHR 2012.
- R.K.M. Smith, Textbook on International Human Rights—Sixth Edition (Oxford University Press, Oxford, 2014) at 182.
- Dickson v United Kingdom, no. 44362/04, §78, ECHR 2007-V.
- Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (yet to be signed by all High Contracting Parties).
- See Articles 8(2), 9(2), 10(2) and 11(2). The treatment of these provisions has relevance, in an international context, to instruments such as the International Covenant on Civil and Political Rights—B.B. Lockwood, Jr., et al., "Working Paper for the Committee of Experts on Limitation Provisions", Human Rights Quarterly (1985) 7 Hum Rts Q 35 at 50
- See, for example, the Human Rights Committee view in Hertzberg et al. v Finland to grant 'a certain margin of discretion' to 'responsible national authorities', under the Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR) (para. 2.5).
- Y. Shany, "Toward a General Margin of Appreciation Doctrine in International Law?", The European Journal of International Law (2006) 16 EJIL 5.