The Margin of Appreciation and the Formation of the Genuine European Consensus
In this MultiRights seminar Shai Dothan will present his paper "Why granting states a margin of appreciation supports the formation of a genuine European consensus".
The European Court of Human Rights (ECtHR) applies a doctrine called "Emerging Consensus". According to this doctrine, if the majority of European states protect a certain human right, the ECtHR will declare this so-called consensus to be the law. It will then find states that fail to protect the right in question to have violated the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). This doctrine can be justified by reference to the intuition that underlies the Condorcet Jury Theorem, a simple mathematical model that suggests that the decision of a majority in a group of similar and independent decision-makers is more likely to be correct than the decision of any one member of that group. Yet the preconditions the Jury Theorem requires are not always met by the actual conditions under which the doctrine of Emerging Consensus operates: not every state in Europe decides independently and some outlier states have characteristics that make them so fundamentally different from the rest of Europe that there is no reason the consensus decision would reveal information about what is good for their citizens.
The paper suggests that an additional doctrine be used in combination with the doctrine of Emerging Consensus, one that would help bring the ECtHR closer to the decision-making ideal set out by the Jury Theorem. The additional doctrine is the Margin of Appreciation, which posits that the ECtHR must sometimes defer to the human rights policies of certain states and avoid finding them in violation. The paper identifies three trends in the doctrine's application that can profitably guide the ECtHR.
The MultiRights seminars are organised by the MultiRights project on the multi-level human rights judiciary. They provide a forum for discussions for researchers from various backgrounds, including law, philosophy and political science. The seminars take place on a regular basis on Tuesdays and are open for all.