Date: 2024
Type: Thesis
The margin of appreciation at the European Court of Human Rights : a court under pressure in search of legitimacy
Florence : European University Institute, 2024, EUI, LAW, PhD Thesis
MOLBÆK-STEENSIG, Helga, The margin of appreciation at the European Court of Human Rights : a court under pressure in search of legitimacy, Florence : European University Institute, 2024, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/76965
Retrieved from Cadmus, EUI Research Repository
The margin of appreciation is a doctrine in the caselaw of the European Court of Human Rights. It is contested in the literature both descriptively and normatively, but in the most overarching of terms, it is assumed to increase deference to state parties for reasons of subsidiarity, democracy, or procedural quality. Originally conceived in connection with national security and derogation in times of emergency, the doctrine has since been applied more broadly and is today often conceptualised as emerging from the ‘necessary in a democratic society’ limitation on legal interferences with Articles 8–11 of the European Convention on Human Rights. In practice, however, it has been applied in connection with almost every right in the Convention. In recent years, some politicians, academics, and judges have made the case that the margin should be applied more ‘robustly’. This suggestion has moved from general discussion to a more formal request and encouragement in the political declarations by the Committee of Ministers during the Interlaken reform process. This thesis investigates whether abiding by this request would be compatible with the Court’s independence and its purpose, and whether the Court has abided. To this end, an unprecedented in-depth empirical study of the use of the margin of appreciation by different actors at the Court was conducted, along with a reflection into the foundational principles behind the doctrine, building a framework for determining when and how it is appropriate to apply the margin in the Court’s caselaw and when it is not. The main finding of this thesis is that despite claims to the contrary in political speech and academic literature, the margin does not appear to have been applied more often in response to increasing criticism, and statistically speaking the margin does not help states win cases.
Additional information:
Defence date: 13 June 2024; Examining Board: Prof. Martin Scheinin (European University Institute, supervisor): Prof. Urška Šadl (European University Institute); Prof. Janneke Gerards (Utrecht University); Prof. Malcolm Langford (University of Oslo)
Cadmus permanent link: https://hdl.handle.net/1814/76965
Full-text via DOI: 10.2870/727025
Series/Number: EUI; LAW; PhD Thesis
Publisher: European University Institute
Preceding version: https://hdl.handle.net/1814/76545; https://hdl.handle.net/1814/75068; https://hdl.handle.net/1814/75077
Version: Section a from Chapter 1 'Epistemology, methodology, and methods for contentious topics : sampling and inference in empirical legal studies' of the PhD thesis draws upon an earlier version published as an article 'Battling for the is-position in the field of law : the problem with case-law sampling' (2024) in the journal 'European journal of legal studies'.; Section b from Chapter 6 'Empirical study of the margin of appreciation : does de use of the margin of appreciation win cases?' of the PhD thesis draws upon an earlier version published as an article 'Subsidiarity does not win cases : a mixed methods study of the relationship between margin of appreciation language and deference at the European Court of Human Rights' (2023) in the journal 'Leiden journal of international law'.; Section d from Chapter 2 'Reacting to pressure : a brief history of an ever-reforming Court : conclusions on current challenges to the Court in a historical perspective' of the PhD thesis draws upon an earlier version published as chapter 'The Copenhagen declaration : wrapping up the Interlaken reform?' (2022) in the book 'Theory and practice of the European Convention on Human Rights'.
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