The margin of appreciation at the European Court of Human Rights : a court under pressure in search of legitimacy

Abstract

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.