The Doctrine of the Margin of Appreciation and Its Implications for the Protection of Human Rights

The term “margin of appreciation” describes the maneuver space that the Organs of Strasbourg are willing to offer national authorities in the fulfillment of their obligations as far as the Human Rights European Convention is concerned. The doctrine’s legal basis might be found in jurisprudence of system of administrative law in each civil jurisdiction. At the international law level, the initial recourse to the doctrine of the margin of appreciation has taken place in the European Court of Human Rights jurisprudence. This paper explicates the functions and the origin of the margin of appreciation doctrine, its interpretative principles and also puts into consideration the controversies of the doctrine and the negative impact of the doctrine on the protection of human rights.

Overview of the Doctrine

The doctrine of the margin of protection is one of the most popular legal constructs, which is judge made as far as European jurisprudence of human rights is concerned. The European Court of Human Rights (ECtHR) reasoning has been influenced by this doctrine. Moreover, the relations of the forty seven states that are bound by the European Convention with the court have been defined by the doctrine of the margin of protection (Tumay 2008). The doctrine ensures that the lowest level protection of human rights is met in all the states that are contracting besides allowing the differentiation scope in light of each jurisdiction’s particularity.

Functions of the Doctrine of the Margin of Appreciation

The margin of protection doctrine serves many purposes. First, it is utilized as an analytical tool by the ECtHR in assessing the Convention’s provisions and protocols that need to be balanced with other rights or require to be measured up against other public interest aspects (Fenwick 2009). The doctrine also devolves the exercise of balancing in huge measure to courts that are national, therefore, recognizing their important roles both as the initial forums available for human rights protection and expertise in national law matters. The margin of appreciation offers the flexibility required to prevent negative confrontations between the Member States and the Court, therefore, helping the Court in balancing the sovereignty and obligations of the Member States of the Convention. Conclusively, the doctrine ensures effective protection of human rights. The protected human rights regard the ones under the system of Convention (Cakmak 2008).

Origin of the Margin of Appreciation Doctrine

Referring to the European level, the margin of appreciation concept emerged as a result of the questions that surrounded the Martial Law. The concept was introduced to the jurisprudence of the European Convention in 1966 (Greer 2000). This occurred via the Human Rights European Commission opinion in a Cyprus case. Later on, the Belgian Linguistic Case introduced the margin of appreciation in conditions that fell out of the emergency situations identified by Article 15 of the European Convention (Fenwick 2009). This case was critical in the establishment of a wider scope for the rising discretion doctrine. The case led to the identification of two basic elements for the establishment of the margin of appreciation. These elements have a consensus status that is focused as far as the signatory states of the Convention and a proportionality principle in the European Convention jurisprudence are concerned. The element of a proportionally principle consisted of factors necessary for the establishment of a certain margin. The factors are a right in question nature and the contested measure pursued aim (Mokhtar 2004).

There was considerable development in the margin of appreciation doctrine in 1976 after the Handyside vs United Kingdom court decision (O’Donnel 1982). The case concerned Danish publication of a primary school textbook which involved sexual behavior that was discussed with involvement of explicit terms. The textbooks were successfully published in many signatory states but met controversy in the United Kingdom. The English publisher, Handyside faced conviction for the violation of domestic laws on publications that were obscene. The case was brought to the European Court, challenging whether there could be an infringement of the freedom of expression by the United Kingdom as provided in Article 10 on moral norms protection ground (Del Moral 2006). The challenge’s basis came from the fact that other European countries had accepted the publication. However, the court accepted the imposed limitation on the freedom of expression and concluded that the Convention was not violated. With the judgment, there was a reinforcement of the European Court’s distinction of the discretion of domestic forms and the Convention framework.

The court’s decision in the Handyside vs United Kingdom case framed the doctrine of the margin of appreciation in systematic tension terms in the framework of the European Convention (Hutchinson 1999). The official Court position is that the derivation of a margin of appreciation should be from a balance that is just for the protection of the community’s general interest and fundamental human rights while putting much value on the community’s general interests.

Interpretative Principles of the Margin of Protection Doctrine

The elements of the margin of appreciation are enshrined in the various interpretative principles of the Convention. This part offers a vivid discussion of each interpretative principle of the margin of protection doctrine.

The Principle of Effective Protection

This principle is not explicit. Rather, it is inherent. It holds that since the effective protection of human rights is the function that overrides the Convention rather than mutual obligations enforcement between states, the provisions of the Convention should lack restrictive interpretation while deferring to national sovereignty (Marochini 2013). The court also expresses this idea in other terms. For instance, the essence of rights should not be undermined in the restrictions of rights. Moreover, the interpretation of the Convention should not be in a manner that proves absurd consequences. The principle of effective protection involves a potential significant limitation on state discretion. However, it lacks the exclusion of both procedural differences and technical differences that exist between states in the Convention obligations’ detailed implementation.

The Principle of Legality

This principle is also commonly referred to as the rule of law. This principle is the ideal foundation of the European Council (European Court of Human Rights 2016). It holds that, state action should follow legal constraints that are formal and effective against the arbitrary executive exercise or power of administration. The Convention’s text expresses the importance of the named value using various ways. For instance, in Article 2(1), it is provided that “everyone’s right to life shall be protected by law” (Legg 2012). On the other hand, Article 5 that enshrines a person’s right to liberty and security is subject to legitimate exceptions that are limited given the rights are in accordance with the prescribed law procedures.

The Principle of Democracy

The principle of democracy is an ideal foundation of the Council of Europe. This principle tends to pull away from the first discussed principles, the principle of legality, and the principle of effective protection. The principle holds that an effective political democracy best maintains human rights as well as fundamental freedoms (Shany 2005). The principle also holds that broadmindedness, pluralism, and tolerance are the essential features of a democratic society. Moreover, it holds that democracy does not only involve taking into account the views of the majority but rather there should be a balance of fair and proper treatment of the minorities, so the dominant position abuse can be avoided (Cakmak 2008).

The Principle of Autonomous Interpretation

This principle postulates that some key terms of the convention should be authoritatively and independently described by the court irrespective of how they are understood by the member states, leading to potential restriction of the defendant state’s discretion (Mowbray 2012). This principle is constrained by the commonality principle which appears in the Convention in many different forms.

The Principle of Proportionality

This principle alters the ego of effective protection. As far as the principle is concerned, to determine the proportion of a right interference, the impact of the right, and the interference, the grounds have to be put into consideration (Fenwick 2009). Important factors that are to be considered related to the interference grounds include the local knowledge and the weighing difficulty of the policy goals that are competing objectively. Various phrases can be used to show proportionality, such as “relevant and sufficient” in regard to the ground (Del Moral 2006).

The Principle of Subsidiary and Review

Various norms in the system of Convention provide an indication that the role and function of the Court are subsidiary to the role of member states as it is basically a review one. Moreover, the role and function are not the court of appeal final one but rather the fourth instance. Article 1 makes it clear that the national authorities have the primary responsibility to secure the Conventions rights and freedoms. Article 35 also provides effective remedies for the applicants (Mokhtar 2004). Applicants are required to also exhaust the procedures of domestic enforcement rather than petitioning the Court. This principle is clearly provided in article 19, which provides that the Human Rights European Court shall ensure the observance of the undertaken engagements by the high contracting parties (Tsarapatsanis 2015).

The Principle of Harmonization and Pluralism

The principle of harmonization and pluralism refers to the political result of state discretion. The political result is a generation of particular judicial concepts that are more of certain contexts’ interaction of interpretive principles and less of reasons (Greer 2000).

The Margin of Appreciation Negative Impacts for the Protection of Human Rights

The wide use of the doctrine of margin of interpretation for the protection of human rights has made it difficult for the court to work in compliance with its mandate. There have been increased tendencies of people moving from one country to another because of various reasons such as for educational or career purposes (European Court of Human Rights 2016). However, because of the margin of appreciation that has different interpretations by the authorities of different nations, these individuals are sometimes caught in a fix and their rights are violated in certain circumstances. A right that is frequently violated is the freedom of religion (Shany 2005). This is because religious difference issues emerge when people move from one nation to another. This human right is sometimes violated when a certain nation does not permit certain religious practices. For instance, an individual who encounters religious symbols in the schooling environment may feel their freedom of religion violated if they move to a nation that abolishes religious symbols in the educational sphere (Marochini 2013). This is brought forth by the different degree of acceptance at which different nations are allowed to display religious symbols.

Moreover, the margin of appreciation has a negative impact for the protection of human rights because the prestige of the court has been lost. This is as a result of increased use of the doctrine, leading national states to be less willing to identify the ECtHR as the authority that is superior (European Court of Human Rights 2016). Additionally, non-compliant states have in the recent past signed the European Convention of Human Rights (ECHR) leading to the increased problematic cases numbers. This in turn has a negative impact on the Court as its prestige is lowered because of the challenges posed by the problematic cases, which prove difficult to solve.

Another negative impact is that the margin of appreciation has led to non-uniformity in the ECHR legal interpretation for the protection of human rights. Article 9 of the ECHR guarantees the freedom of religion, thought and conscience (Del Moral 2006). However, there are some instances whereby these freedoms are violated or misinterpreted because of the non-uniformity in the ECHR legal interpretation. Moreover, there has been non uniformity in various cases such as the Aktas case and the Lautsi case whereby the cases involved the violation of human rights (Marochini 2013). The decisions that followed these two cases presented a contradiction. In the Aktas case, the court accepted the argument that displaying religious symbols in public on a person is not a violation of the freedom of religion. On the other hand, the court accepted the argument that displaying the crucifix in public spheres from the authority of the state did not bring harm to the religion freedom of the exposed people. This brings forth inconsistency in the two court’s arguments (Fenwick 2009).

Controversies of the Margin of Appreciation

The margin of appreciation has faced a number of controversies. First, the court has received criticism for referring to the margin of appreciation doctrine automatically in almost all of its cases, leading to the deference of the national standards during certain instances (Cakmak 2008). In this case, the court fails to carry out assessment that is substantive of the fundamental human rights. The margin of appreciation is required to set equal standards for the respect of human rights and freedoms in all the member states of the Convention. Controversies arise when the margin of appreciation does not apply in all situations and conditions in all the member states of the Convention.

In addition, the doctrine of the margin of appreciation is described as slippery and elusive. This is because of its nature that is unclear and unpredictable. This is as illustrated in the non-uniformity of various cases of the court. Different human rights and freedoms follow different interpretations in the member states of the convention (Greer 2000). This is because democracy as one of the elements of the margin of appreciation doctrine has to be respected as far as human rights and freedom are concerned. Therefore, in democratic states, the interests of the majority have to be respected and protected. However, controversies exist in totalitarian governments where democracy is not respected as one of the elements of the margin of appreciation doctrine (Legg 2012). Totalitarian leaders impose rules over their subjects and human rights and freedom are not generally respected.

Conclusion

In conclusion, the margin of appreciation doctrine serves various functions and plays a crucial systematic function in the European Convention’s application of human rights. It brings forth the fulfillment of the objective of the ECtHR which is to supervise the review of the provisions of the human rights. The doctrine has various elements enshrined in the interpretative principles, namely, the principle of effective protection, the principle of proportionality, the principle of democracy, the principle of harmonization and pluralism, and the principle of subsidiary and review. These principles hold different views as far as human rights are concerned and how they are interpreted. However, the margin of appreciation faces various controversies apart from bring forth negative impacts for the protection of human rights. This is because of its non-uniformity and unpredictable nature.

Related Free Law Essays