Is the margin of appreciation doctrine of the European Court of Human Rights (ECtHR) a promising model of deference by a regional human rights court towards democratic states? Or does this doctrine amount to an abdication by such courts from their proper tasks of protecting human rights against violations by states? This special section contributes to the ongoing scholarly debate about the margin of appreciation doctrine, originally developed by the ECtHR.Footnote1 It also explores the emergence of similar doctrines of deference in human rights adjudication outside Europe.Footnote2 The four articles also raise issues relevant for a broader debate about legitimacy and effectiveness of international courts. The authors cover a number of courts, well-established as well as relatively young ones, operating in different legal and political contexts. It allows reflecting on common as well as court-specific reasons for exercising or avoiding deference.
The two contributions focused on the ECtHR (by Saul and Müller) address criticisms towards its margin of appreciation doctrine. They highlight ways of improving the quality of its judgments, inter alia by securing greater clarity and consistency across case law, in order to ultimately improve the quality of national decision-making.
Müller sketches the contours of an obligation to ‘co-develop’ the rights enshrined in the European Convention of Human Rights. She explains that in order to fulfil this obligation, national authorities are required to keep issues under review and adapt human rights standards to changing circumstances. She expects that such adaptation can be fed into an emerging regional consensus on an evolving minimal standard of protection. This process of bottom-up development of European human rights law can be facilitated and subsequently validated by the ECtHR. Müller suggests that by showing an explicit link between the breadth of the margin of appreciation and firmness of consensus, the ECtHR could incentivise national authorities to continuously engage with the convention in light of present-day conditions. It could also more frequently call for keeping issues under review (including through effective legislative-judicial interaction) where there is no clear consensus on the substantive minimal protection standard yet, but where such a consensus is likely to consolidate in the near future.
Saul focuses on the ECtHR’s engagement with national parliamentary processes. He singles out two technical purposes for placing value in the quality of parliamentary process: determination by the ECtHR of the breadth of the margin of appreciation (the level of deference shown to national authorities, due to their being better placed to pass a judgment) and the ECtHR’s own proportionality analysis of the justifiability of the state’s limitation of a right. Saul argues that it is reasonable for the ECtHR to examine parliamentary process as part of either the margin of appreciation or proportionality analysis. However, it should be clear about the technical purpose that reference to parliamentary process is serving in its reasoning. Saul outlines elements that the ECtHR should focus on, depending on what the technical purpose of assessment is. He considers that greater precision will help achieve greater coherence and predictability, improve accessibility of the ECtHR’s reasoning and make the differences in the assessment of parliamentary processes understandable for domestic audiences.
The remaining two articles seek to ascertain whether courts outside Europe are willing to defer to national authorities. The authors explain the reluctance of these courts to exercise deference and highlight considerations (related to benefits as well as dangers) that should guide them if they decide to fully embrace a margin-like approach in the future. Younger, less well-established courts, especially in the absence of a clear treaty-based mandate, could make use of a margin-like doctrine to avoid confrontation with states. However, it seems that such courts prefer taking an assertive (as opposed to deferential) approach, at least until national decision-makers can be relied upon in developing human rights standards and properly applying them to the situations at hand.
In her article about the Inter-American Court of Human Rights (IACtHR), Tsereteli reflects on how deference does and should operate at each of the two stages of the IACtHR’s reasoning, norm interpretation and norm application. She points out that these two exercises, while interconnected, are different in function and scope. Consequently, the IACtHR should make a determination about appropriateness of deference for each of these two stages separately, based on a comparative assessment of its own abilities and those of national authorities. Tsereteli regards the IACtHR’s reluctance to defer to national interpretations of rights defensible, due to limited likelihood of concerted expansion of protection by states in light of changing circumstances. However, in order to ensure that human rights standards are democratically legitimate and practically implementable, the IACtHR has to take a middle ground between overreliance on national interpretations and their complete disregard. Instead of passively waiting for consolidation of consensus, it could orchestrate this process by incentivising states to keep track of international and/or regional developments and adapt to change. As regards deference to national authorities in norm application (refusal of the IACtHR to impose its determination of consequences that follow from the convention in the given situation), Tsereteli examines a few recent judgments signalling the emergence of a margin-like doctrine. While generally supportive of the IACtHR’s reliance on national jurisdictions, she advises clarifying conditions and the extent of deference to make sure that this doctrine does not create more problems than it is intended to solve.
Von Staden focuses on the human rights jurisprudence of African sub-regional courts established in the context of African regional economic communities (the ECOWAS Community Court of Justice, the East African Court of Justice and the Tribunal of the South African Development Community). He looks for the instances in which these courts assigned weight to the arguments and positions of respondent states and deferred to them for reasons unrelated to the merits of the case. He highlights a range of factors that make these courts likely candidates for institutionalisation of subsidiarity in their human rights jurisprudence by adopting a margin-like doctrine. These factors include the absence of expressly stipulated human rights norms and of treaty-based mandates to exercise jurisdiction over human rights issues, the need for enhancing legitimacy in the eyes of states and facilitating voluntary compliance. He ascertains that none of the three courts have developed a deference-granting doctrine, even though they seem to have stronger reasons for doing so than the ECtHR. Explaining the absence of a margin-like doctrine, he suggests that since the democratic character of countries subject to the jurisdiction of the three courts is not yet solid, these courts might have sought to clarify obligations to remedy democratic shortcomings without diluting that effect by introducing the notion of wiggling room. In addition, von Staden suggests that where the courts can count on the strong backing of the civil society, they have limited incentive to please states by introducing a doctrine of deference and greater interest in reigning in state power.
Notes on contributors
Andreas Follesdal is Professor of Political Philosophy at the Faculty of Law, University of Oslo. He received his PhD in Philosophy in 1991 from Harvard University. He is Co-Director of the Norwegian Centre of Excellence PluriCourts for the Study of the Legitimate Roles of the Judiciary in the Global Order (2013–2024) and Principal Investigator, European Research Council Advanced Grant MultiRights 2011–16, on the legitimacy of multi-level human rights judiciary.
Nino Tsereteli is a Post-Doctoral fellow at the Judicial Studies Institute, Masaryk University, Faculty of Law. She received her PhD in law from the University of Oslo in 2015.
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1. See for example Eyal Benvenisti, ‘Margin of Appreciation, Consensus and Universal Standards’, New York Journal of International Law and Policy 31(1998–1999): 843, 850–3; R.St.J. Macdonald, ‘The Margin of Appreciation’, in The European System for the Protection of Human Rights, ed. R.St.J. Macdonald, F. Matscher, and H. Petzold (Dordrecht: Martinus Nijhoff, 1993), 83–124; George Letsas, ‘Two Concepts of the Margin of Appreciation’, in A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007); Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the ECHR (Leiden: Brill, 2009); Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford: Oxford University Press, 2012); Jan Kratochvil, ‘The Inflation of the Margin of Appreciation by the European Court of Human Rights’, Netherlands Human Rights Quarterly 29 (2011); Janneke Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’, European Law Journal 17, no. 1 (January 2011); Federico Fabbrini, ‘Margin of Appreciation and the Principle of Subsidiarity’, in A Future for the Margin of Appreciation?, ed. Mads Andenas, Eirik Bjorge, and Giuseppe Bianco (Oxford: Oxford University Press, forthcoming), https://ssrn.com/abstract=2552542.
2. See for example Dominic McGoldrick, ‘A Defence of the Margin of Appreciation and an Argument for its Application by the Human Rights Committee’, International and Comparative Law Quarterly 65 (2016): 21–60; Jorge Contesse, ‘Contestation and Deference in the Inter-American Human Rights System’, Law and Contemporary Problems 79 (2016): 123–45.