The Margin of Appreciation Revisited – Some Reflections from the MultiRights Workshop
By Nino Tsereteli, PhD Candidate, MultiRights
On 4-5 June, a group of scholars gathered in Oslo at the MultiRights Workshop to discuss the judge-made margin of appreciation doctrine of the European Court of Human Rights (the ECtHR) that has been at the forefront of the recent high level political discussions regarding the reform of the Convention machinery. Explicit and implicit criticisms of the ECtHR on account of nature and intensity of its review as well as consistency and clarity of its jurisprudence give rise to speculations/suggestions about possible reactions of the ECtHR to such criticisms in the years to come.
Shifts in the recent jurisprudence prompted some of the court insiders to suggest that the ECtHR is entering the new age of subsidiarity. How do recent judgments fit into the overall narrative of the evolution of the ECtHR? Is the ECtHR actually doing something new? If so, can these developments be linked back to some states’ dissatisfaction with the way the Court assesses domestic decision-making processes? Are changes in the judicial approach at all warranted and if so, what normative and pragmatic considerations should inform those changes? Is greater specificity and predictability in the application of the margin of appreciation doctrine actually achievable or as noted by Judge Spielmann, unpredictability is unavoidable and inherent in the nature of this concept, due to its sensitivity to the legal and factual context of each case?
Margin of Appreciation/Subsidiarity and the Reform Process – from Interlaken to Brussels
The declaration adopted at the High Level Conference in Interlaken in 2010 invited the ECtHR to “take fully into account its subsidiary role in the interpretation and application of the Convention. (para 9 b). In 2012, Brighton Declaration made it clear that states view the margin of appreciation as a safeguard against excessive judicial intervention and as means of affirming the limits of the ECtHR’s supervisory powers (para.11). The states urged the Court to “give greater prominence” to and “consistently” apply the margin. (para. 12 (a)). They called for the amendment securing the inclusion of the margin of appreciation and subsidiarity in the Convention text, invoking the need to secure “transparency and accessibility.” (para. 12 b). These documents show a certain degree of dissatisfaction with the way the Court operates.
Most recently, at the Brussels Conference on 27 March 2015, the states invited the ECtHR to be “vigilant in upholding the State Parties’ margin of appreciation.” (para. 7, Conclusions). Interestingly, in their comments on the draft of the declaration, the non-governmental organizations criticized this wording as undermining the independence of the Court, prescribing how to apply this juridical doctrine.
The political compromise reached in Brighton led to the incorporation of this judge-made construct into the Convention Preamble through Protocol no. 15 (not yet in force). The amendment was formulated as followed:
“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”
The under-developed formulation of the amendment triggers a number of questions. Is it a mere restatement of already well-established concepts and even an affirmation of the state support towards this judge-made doctrine, hence unlikely to lead to radical changes in judicial approach? Is it rather a call for greater deference to states, aimed at curbing judicial expansion of the scope of rights and facilitating judicial self-restraint in matters that domestic authorities are said to be better positioned to decide upon? It is a call for incentivizing or assisting states in improving the quality of decision-making?
Some of the Highlights of the MultiRights Workshop
The MultiRights workshop allowed for the continuation of the scholarly discussion on the margin of appreciation in the light of the recent developments briefly described above. The workshop started out by revisiting and critically assessing existing theoretical accounts of the doctrine and the way in which these accounts reflect actual, evolving practice of the ECtHR. Some contributors highlighted the scope of rights as determinative of the scope of the margin of appreciation afforded to domestic authorities. Hence, they derived states’ discretion from the substance of the ECHR rights in the first place. The dynamic interpretation by the ECtHR and resulting expansion of the scope of rights, potentially narrowing down margin of appreciation, can be subject of concern, especially if it is not supported by some kind of European consensus. The role of consensus in legitimating the court-driven reform and aligning it with majoritarian preferences has been highlighted. The lack of clarity and predictability of the Court’s use of the consensus argument has been pointed out, with some suggestions about changes that would make this concept worth keeping.
Interestingly, one of the contributors also raised the question of some sort of “common responsibility” for the evolution of the law and correlated the degree to which the domestic actors effectively engage in this process with the degree to which the Court is willing to take a back-seat in this regard. It is also interesting that passive approach of the Court, letting the states interpret the obligations could potentially lead to eroding normative guidance and freezing the development of the law.
Another dimension of debates on the margin of appreciation focused on the considerations of democracy and expertise as a basis for the ECtHR’s deference to the decision-making processes. This line of thought highlights subsidiary nature of judicial review (derived from the domestic authorities’ being better placed to decide), as a basis for affording broad margin. This would call for greater reliance on the domestic parliamentary and judicial decision-making processes, albeit without abdicating the judicial responsibility and undermining effective protection of rights.