Toward a general margin of appreciation doctrine in International Law?

European Journal of International Law

Volumn 16, Issue 5, 2005, Pages 907-940

  Shany, Yuval ^a,b,c  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

^b NEW YORK UNIVERSITY   (United States)

^c UNIVERSITY OF LONDON   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 31544462354     PISSN: 09385428     EISSN: None     Source Type: Journal    
DOI: 10.1093/ejil/chi149     Document Type: Article

References (333)

1. Oil Platforms (Iran v US) [2003] ICJ Rep 90.
2. Avena (Mexico v US) [2004] ICJ Rep (forthcoming).
3. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Opinion of 9 July 2004 [2004] ICJ Rep (forthcoming), 43 ILM (2004) 1009 (hereinafter OPT Wall).
4. Cf EC - Measures Concerning Meat and Meat Products (Hormones), WTO WT/ DS26/AB/R (1998), at para. 115 ('The standard of review ... must reflect the balance established in that [SPS] Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves')
5. Ehlermann and Lockhart, 'Standard of Review in WTO Law', 7 J Int'l Eco L (2004) 491, at 493.
6. One can also link the debate over the status of the margin of appreciation doctrine to the constitutionalization of international law: see Zleptnig, 'The Standard of Review in WTO Law: An Analysis of Law, Legitimacy and the Distribution of Legal and Political Authority', 6 European Integration online Papers (EIoP), No 17 (2002), available at http://eiop.or.at/eiop/texte/2002-017a.htm, at 9-10.
7. Some but not all of the considerations discussed in this article could also support the application of a margin of theory doctrine vis-à-vis obligations incumbent upon non-state actors.
8. See, e.g., Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002), at 2-3 (discussing the French and German origins of the doctrine).
9. See infra Part II.
10. For a clear elaboration of the two prongs of the doctrine, see Art. 17.6 of the Antidumping Agreement. Agreement on the Implementation of Art. VI of the General Agreement on Tariff and Trade 1994, Annex 1A to the Agreement establishing the World Trade Organization, 15 Apr. 1994, 33 ILM (1994) 1144 ('(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned; (ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations').
11. Ireland v UK, 2 EHRR 25, at 91-92 (1978)
12. Ehlermann and Lockhart, supra note 4, at 502.
13. James v UK, 8 EHRR (1986) 123, at 1142-143 ('[T]he Court cannot substitute its own assessment for that of the national authorities')
14. Karataş v Turkey [1999] IV ECtHR 81, at 120 (Joint Partly Dissenting Opinion of Judges Wildhaber, Pastor Ridruejo, Costa and Baka ('In the assessment of whether restrictive measures are necessary in a democratic society, due deference will be accorded to the State's margin of appreciation; the democratic legitimacy of measures taken by democratically elected governments commands a degree of judicial self-restraint')
15. Hormones (AB), supra note 4, at para. 117 ('the applicable standard is neither de novo review as such, nor "total deference", but rather the "objective assessment of the facts"')
16. Argentina - Safeguard Measure on Imports of Footwear (Footwear), WTO Doc. WT/DS121/AB/R (2000), at para. 121
17. EC - Measures Affecting Asbestos and Asbestos-Containing Products, WTO Doc WT/DS135/AB/R (2001), at para. 168.
18. See, e.g., Sheffield v UK, 27 EHRR (1998) 163, at 179 and 192
19. Odiévre v France, judgment of 13 Feb. 2003, at para. 40.
20. See, e.g., Vo v France, ECtHR judgment of 8 July 2004, at para. 82.
21. See, e.g., Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000), available at http://www.un.org/icty/pressreal/nato061300.htm, at para. 50.
22. See also Donoho, 'Autonomy, Self-Government, and the Margin of Appreciation: Developing a Jurisprudence of Diversity within Universal Human Rights', 15 Emory Int'l L Rev (2001) 391, at 457
23. Greer 'Constitutionalising Adjudication under the European Convention on Human Rights', 23 Oxford J Legal Studies (2003) 405, at 409.
24. See Hormones (AB), supra note 4, at para. 117.
25. See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 311, Art. 26 (hereinafter VCLT).
26. See also Akande and Williams, 'International Adjudication on National Security Issues: What Role for the WTO?', 43 Va J Int'l L (2003) 365, at 389-391.
27. See Rekvényi v Hungary, 30 EHRR (2000) 518, at 549 ('[T]he court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in art 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts')
28. US - Restrictions on Imports of Cotton and Man-Made Fiber Underwear, WTO Doc. WT/DS24/R (1996), at para. 7.13 ('[A]n objective assessment would entail an examination of whether the [US Committee for the Implementation of Textiles Agreements] had examined all relevant facts before it..., whether adequate explanation had been provided of how the facts as a whole supported the determination made, and, consequently, whether the determination made was consistent with the international obligations of the United States")
29. Argentinean Safeguards, supra note 10, at para. 121.
30. A conspicuous exception is found in Art. 17.6 of the Antidumping Agreement. See supra note 8.
31. Notably, even critics of the doctrine do not normally allude to the formal lack of legal basis as a serious deficiency. But see Arai-Takahashi, supra note 6, at 231.
32. L. Henkin, International Law: Cases and Materials (3rd edn, 1993), at 791.
33. See also Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v US) [1992] ICJ Rep 3, at 113 (Order of 14 Apr. 1992; Dissenting Opinion of Judge El-Kosheri) (courts have inherent power to ensure the proper administration of justice).
34. Prosecutor v Bobetko, Decision of 29 Nov. 2002 (ICTY, AC), at para. 15.
35. See, e.g., Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 18 March 1965, 575 UNTS 159, Art. 44
36. ICSID Rules of Procedure for Arbitration Proceedings (as amended on 29 Sept. 2002), Art. 19, available at http://www.worldbank.org/icsid/basicdoc/partF.htm;
37. UN Convention on the Law of the Sea, 10 Dec. 1982, 21 ILM (1982) Annex VII, Art. 5 (Arbitration Rules), 1261 (hereinafter UNCLOS)
38. Understanding on the Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the Agreement Establishing the World Trade Organization), 15 Apr. 1994, 33 ILM (1994) Art. 12.1, 1226 [hereinafter DSU].
39. See, e.g., International Court of Justice Rules of Court 1978, as amended on 5 Dec. 2000, Art. 58(2), available at http://www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ ibasicrulesofcourt_20001205.html;
40. International Criminal Court Rules of Procedure and Evidence, 10 Sept. 2002, ICC Off. Rec. ICC/ASP/1/3 (2002) Art. 63(2). The ability to deduce rules of evidence from the inherent powers of the international judiciary has been confirmed by the ICTY: Prosecutor v Jelisic, ICTY AC Decision of 15 Nov. 2000.
41. DSU supra note 20, Art. 11.
42. See Zleptnig, supra note 4, at 3-4.
43. The theory of rights as side-constraints had been developed by R Nozick, Anarchy, State, and Utopia (1974), at 29-34.
44. Lotus (France v Turkey) [1927] PCIJ Rep, Series A, No 10, at 18-19.
45. The link between the principle of subsidiarity and the margin of appreciation was discussed by the ECtHR in Use of Languages in Belgium (the Belgian Linguistics Case), 1 EHRR 252, at 281-282 (1968).
46. See also Arai-Takahashi, supra note 6, at 3
47. Petzold, 'The Convention and the Principle of Subsidiarity', in R St J MacDonald et al. (eds), The European System for the Protection of Human Rights (1993), at 41, 59
48. Carozza, 'Subsidiarity as a Structural Principle of International Human Rights Law', 97 AJIL (2003) 38, at 57-58.
49. See, e.g., Certain Aspects of the Laws on the Use of Languages in Education in Belgium (No 2) (Merits), 1. EHRR 252, at 353 (1967), Partly Dissenting Opinion of Judge Wold;
50. Lord Lester of Herne Hill, 'Universality Versus Subsidiarity: A Reply' [1998] Eur Hum Rts L Rev 73, at 75
51. Benvenisti, 'Margin of Appreciation, Consensus and Universal Values', 31 NYU J Int'l L & Pol (1999) 843, at 844
52. Besselink, 'Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union', 35 CML Rev (1998) 629, at 639-640
53. P van Dijk and G van Hoof, Theory and Practice of the European Convention on Human Rights (3rd edn, 1998), at 93
54. Arai-Takahashi, supra note 6, at 233.
55. See, e.g., Feingold, 'The Doctrine of Margin of Appreciation and the European Convention on Human Rights', 53 Notre Dame L Rev (1977) 90, at 95.
56. Henkin, 'That "S" Word: Sovereignty, and Globalization, and Human Rights, et cetera', 68 Fordham L Rev (1999) 1, at 7.
57. See Golder v UK, 1 EHRR 524, at 526-527 (1975), at 53 (Separate Opinion of Judge Fitzmaurice).
58. Cf M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989), at 2-6 (discussing the link between the responsiveness of international law to state needs and the propensity to comply).
59. See, e.g., Donoho, supra note 13, at 406
60. Perry, 'Are Human Rights Universal? The Relativist Challenge and Related Matters', 19 Hum Rts Q (1997) 461, at 498-509
61. Sweeney, 'Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era', 54 ICLQ (2005) 459, at 471
62. Arai-Takahashi, supra note 6, at 235.
63. See, e.g., Department of Defense Working Group Report on Detainee Interrogations in the Global War Against Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations, 6 Mar. 2003, available at http://stopimperialism.be/military_0604.pdf, at 10-16.
64. See, e.g., Murphy, 'Contemporary Practice of the United States', 96 AJIL (2002) 461, at 487-488.
65. On the link between norm determinacy and legitimacy, see TM Franck, The Power of Legitimacy Among Nations (1990), at 50.
66. Cf Carozza, supra note 25, at 72.
67. On the link between legal certainty and the margin of appreciation doctrine, see, e.g., Rees v UK, 9 EHRR (1987) 56, at 67.
68. This also includes balancing between competing norms. See Greer, supra note 13, at 429
69. Ehlermann and Lockhart, supra note 4, at 497.
70. Cf Croley and Jackson, 'WTO Procedures, Standard of Review, and Deference to National Governments', 90 AJIL (1996) 193, at 202.
71. See, e.g., Marbury v Madison, 5 US 137 (1803), at 177 ('It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule')
72. Ehlermann and Lockhart, supra note 4, at 504.
73. Cf Croley and Jackson, supra note 38, at 205.
74. See, e.g., Kennedy, 'Form and Substance in Private Law Adjudication', 89 Harvard L Rev (1976) 1754
75. Schlag, 'Rules and Standards', 33 UCLA L Rev (1985) 379, at 382-383
76. Cox, 'An Interpretation and (Partial) Defense of Legal Formalism', 36 Indiana L Rev (2003) 57, at 68
77. Kaplow, 'Rules Versus Standards: An Economic Analysis', 42 Duke LJ (1992) 557, at 568-570
78. Sullivan, 'The Justices of Rules and Standards', 106 Harvard L Rev (1992) 22, at 57-59.
79. See, e.g., General Agreement on Tariffs and Trade, 30 Oct. 1947, 55 UNTS 194 (hereinafter GATT), Art. XX(b)
80. International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 UNTS 171 (hereinafter ICCPR), Art. 19(3)
81. Geneva Convention relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, 75 UNTS 287, Art. 53.
82. See, e.g., UNCLOS, supra note 20, Art. 221(a)
83. Additional Protocol to the Geneva Conventions of 12 Aug. 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Art. 57(b).
84. Charter of the United Nations, 26 June 1945, 59 Stat. 1031, Art. 2(3)
85. VCLT, supra note 15, Art. 26.
86. See, e.g., Convention on the Law of the Non-navigational Uses of International Watercourses, 21 May 1997, 36 ILM (1997) 700, Art. 5
87. Treaty Establishing the European Community (Consolidated Version), 24 Dec. 2002, OJ (2002) C 325/33, Art. 77
88. European Convention on Human Rights, 4 Nov. 1950, ETS 5, Art. 5(3).
89. See, e,g., GATT, supra note 42, Art XX;
90. ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc. A/CN.4/L.602/Rev.1 (2001), Arts. 25 and 51
91. ICCPR, supra note 42, Art. 4
92. International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 UNTS 3 (herein-after ICESCR), Art. 4.
93. See also Arai-Takahashi, supra note 6, at 8.
94. See, e.g., D'Amato, 'Legal Uncertainty', 71 California L Rev (1983) 1, at 3, n. 6
95. Kennedy, supra note 41, at 1701.
96. See, e.g., Korobkin, 'Behavioral Analysis and Legal Form: Rules VS. Standards Revisited', 79 Oregon L Rev (2000) 23, at 25-30.
97. See Kennedy, supra note 41, at 1702-1706, 1709-1710.
98. See, e.g., Carozza, supra note 25, at 60-63
99. Mahoney, 'Judicial Activism and Judicial Self-restraint in the European Court of Human Rights: Two Sides of the Same Coin', 11 Hum Rts LJ (1990) 57, at 78
100. Sweeney, supra note 31, at 472.
101. But see Schlag, supra note 41, at 412-413 (challenging the traditional certainty/uncertainty dichotomy by pointing out that the application of rules in some areas works to increase uncertainty in unregulated areas and that the application of precedents to standard settings reduces flexibility of the standards).
102. See, e.g., Carozza, supra note 25, at 60.
103. See also Teubner, 'Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences', 61 MLR (1998) 11, at 20-21 (arguing that distinct legal traditions might also influence the application of standards)
104. Arai-Takahashi, supra note 6, at 238-239
105. Greer, supra note 13, at 425.
106. These requirements exist separately under jus ad bellum and jus in bello. See, e.g., Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Rep 226, at 245
107. Protocol I, supra note 43, Art. 51(5)(b).
108. Cf Zleptnig, supra note 4, at 12.
109. See Oil Platforms, supra note 1, Separate Opinion of Judge Koojimnas, at para. 44 ('[T]he means by which interests may be protected are usually subjected to legal prescriptions that are stricter and more compelling').
110. GATT, supra note 42, Art. XXI. For similar language see Council of Europe Convention on Cybercrime, 23 Nov. 2001, ETS 185, Art. 27(4)
111. Agreement on the Establishment of a Free Trade Area (US - Jordan), 24 Oct. 2000, 41 ILM (2002) 63, Art. 12(2)(a)-(b)
112. Central European Free Trade Agreement, 21 Dec. 1992, 34 ILM (1995) 3, Art. 19
113. North American Free Trade Agreement, 8 Dec. 1992, 32 ILM (1993) 296, Art. 2101(1)(b)
114. UN Convention on the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 20 Dec. 1988, 28 ELM (1989) 497, Art. 13.
115. UNCLOS, supra note 20, Art. 246(5).
116. Vienna Convention on Diplomatic Relations, 18 Apr. 1961, 500 UNTS 95, Art. 9.
117. See also Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 27 Sept. 1968, 29 ELM (1990) 1413, Art. 28, as updated by Council Regulation 44/2001 of 22 Dec. 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, OJ (2001) L 12/1 (hereinafter Brussels Convention)(states may also have discretion on whether to recognize the effect of related proceedings taking place before foreign courts).
118. See also Arai-Takahashi, supra note 6, at 220.
119. See, e.g., Akande and Williams, supra note 15, at 386-388.
120. See ILC Commentary to Art. 12 of the Draft Articles on State Responsibility for Internationally Unlawful Acts, GAOR 56th Sess., Supp. No. 10 (A/56/10), chp IV.E.2 (2001), at 130-131 (para. 11).
121. See, e.g., Colozza v Italy, 7 EHRR (1985) 516, at 525 ('The Contracting States enjoy a wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of article 6(1) in this field')
122. LaGrand (Germany v. US) [2001] ICJ Rep 466, at 514.
123. ICESCR, supra note 46, Art. 2(1).
124. See also Johnston v Ireland, 9 EHRR (1987) 203, at 220
125. Mahoney, supra note 50, at 79.
126. Kyoto Protocol to the Framework Convention on Climate Change, 10 Dec. 1997, 37 ILM (1998) 22, Art. 3 (1).
127. Greer refers to the discretion afforded to governments in such cases as 'implementation discretion': Greer, supra note 13, at 423.
128. See, e.g., Case C-6/90, Francovich v Italy [1991] ECRI-5357, at 5412.
129. See Lotus, supra note 24, at 19 (states generally enjoy in their exercise of powers a 'wide measure of discretion, which is only limited in some cases by prohibitive rules').
130. See also National Union of Belgian Police, 1 EHRR 578, at 591 (1975).
131. See e.g., Evrigenis, 'Recent Case-Law of the European Court of Human Rights on Articles 8 and 10 of the European Convention on Human Rights', 3 Hum Rts LJ (1982) 121, at 137-138.
132. See, e.g., Croley and Jackson, supra note 38.
133. Cf Menkel-Meadow, 'Pursuing Settlement in an Adversary Culture: A Tale of Innovation Co-opted or "The Law of ADR"', 19 Florida State U L Rev (1991) 1, at 7 ('[O]utcomes derived from our adversarial judicial system or the negotiation that occurs in its shadows are inadequate for solving many human problems').
134. See, e.g., H.C. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996), at 14
135. Mahoney, supra note 50, at 76
136. Chevron, USA, Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984), at 843-845 ('[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency')
137. Associated Provincial Picture Houses, Ltd v Wednesbury Corp [1948] 1 KB. 223, at 230
138. HCJ (High Court of justice) 389/90 Dapei Zahav Ltd v Broadcasting Authority, 35(1) PD 421, at 440-441 (Supreme Court of Israel) ('The question is not what the court would have done in the concrete circumstances, but whether a reasonable administrative authority would have conducted itself like the public official conducted himself') (unofficial translation)
139. Croley and Jackson, supra note 38, at 206-207.
140. Cf Kennedy, supra note 41, at 1752.
141. Arai-Takahashi, supra note 6, at 239
142. Ehlermann and Lockhart, supra note 4, at 502.
143. Cf Handyside v UK, 1 EHRR 737 (1976), at 753-754
144. Ireland v UK, supra note 9, at 92 (state authorities are better situated than international judges to appreciate domestic conditions).
145. See also Carozza, supra note 25, at 73
146. Croley and Jackson, supra note 38, at 208.
147. But see van Dijk and van Hoof, supra note 26, at 94
148. Greer, supra note 13, at 420.
149. Arai-Takahashi, supra note 6, at 207
150. Helfer and Slaughter, 'Toward a Theory of Effective Supra national Adjudication', 107 Yale LJ (1997) 273, at 320
151. Ehlermann and Lockhart, supra note 4, at 493.
152. On the link between legitimacy and compliance, see Franck, supra note 34, at 24.
153. Benvenisti, supra note 26, at 844.
154. Cf Carozza, supra note 25, at 67.
155. At the national level, separation of powers considerations also militate against excessive intrusiveness on the part of the judiciary in the business of government. See, e.g., Sprigman, 'Standing on Firmer Ground: Separation of Powers and Deference to Congressional Findings in the Standing Analysis', 59 U Chicago L Rev (1992) 1645, at 1667-1668
156. Starr, 'Judicial Review in the Post-Chevron Era', 3 Yale J of Regulation (1986) 283, at 308, 312.
157. See Hatton v UK, 37 EHRR (2003) 611, at 634 ('The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions')
158. Croley and Jackson, supra note 38, at 207
159. Greer, supra note 13, at 420.
160. See Zleptnig, supra note 4, at 16
161. Ehlermann and Lockhart, supra note 4, at 493.
162. Arai-Takahashi identifies several areas of human rights law which are closely linked to state sovereignty notions and attract a wide margin of appreciation. These include immigration and election systems: Arai-Takahashi, supra note 6, at 210-213.
163. See, e.g., Mahoney, 'Marvellous Richness of Diversity or Invidious Cultural Relativism?', 19 Hum Rts LJ (1998) 2, at 4.
164. Benvenisti, supra note 26, at 843, 846
165. Arai-Takahashi, supra note 6, at 216
166. Mahoney, supra note 50, at 81-82
167. Marks, 'The European Convention on Human Rights and its "Democratic Society"', 66 BYIL (1995) 209, at 219.
168. The classical exposition of this rationale is found in the arguments made by the European Human Rights Commission President, Sir Humphrey Waldock, before the ECtHR in Lawless v Ireland, ECtHR, Series B, No 1 (1960-1961), at 408 ('[T]he interest which the public itself has in effective Government and in the maintenance of order justifies and requires a decision in favour of the legality of the Government's appreciation').
169. See also Waldock, 'The Effectiveness of the System Set Up by the European Convention on Human Rights', 1 Hum Rts LJ (1980) 1, at 9.
170. Croley and Jackson, supra note 38, at 209.
171. Cf Oil Platforms, supra note 1, Separate Opinion of Judge Koojimans, at para. 44 (Resort to force 'lends itself much more to judicial review and thus to a stricter test, since the means chosen directly affect the interests and rights of others').
172. Benvenisti, supra note 26, at 847, 849.
173. See also Arai-Takahashi, supra note 6, at 223 (a narrow margin of appreciation is granted in discrimination cases).
174. Greer, supra note 13, at 420.
175. Cf Carozza, supra note 25, at 45-46.
176. The practice of according wider margins of appreciation in specific human rights type legal arrangements comprising democratic regimes fits this analysis well: Ni Aolain, 'The Emergence of Diversity: Differences in Human Rights Jurisprudence', 19 Fordham Int'l LJ (1995) 101, at 114, 119.
177. Cf Prisoners of War (Eritrea Claim 17) (Eritrea v Ethiopia) (partial award), 42 ILM (2003) 1083, at 1092 (Claims Commission) (grave charges against a state must be supported by a high level of certainty). An analogy could even be drawn to the notion that ambiguous criminal legislation should be construed in favour of the accused. See, e.g., Statute of the International Criminal Court, 17 July 1998, UN Doc. A/ CONF.183/9 (1998), Art. 22(2).
178. Carozza, supra note 25, at 77.
179. See also Ireland v UK, supra note 9, at 95 (the Court must not reach its decision out of 'a purely retrospective examination' of the efficiency of the measures in question).
180. The argument can also be linked to the Lotus principle that '[r]estrictions upon the independence of States cannot therefore be presumed': Lotus, supra note 24, at 18
181. While the breadth of the Lotus theory has been subject to much justified criticism (see, e.g., J Pauwelyn, Conflict of Norms in Public International law (2003), at 154), the basic thrust of the doctrine - i.e., that states retain a residual freedom to act in areas not regulated by international law (sometimes described as a principle of subsidiarity) - still seems valid.
182. Carozza, supra note 25, at 74-75
183. Helfer and Slaughter, supra note 73, at 310-312
184. Mahoney, supra note 50, at 81.
185. Koh, 'Bringing International Law Home', 35 Houston L Rev (1998) 623, at 648-650.
186. Cf Benvenisti, supra note 26, at 849.
187. This is of particular importance, given the under-enforcement of many international judgments: Croley and Jackson, supra note 38, at 212.
188. See, e.g., Benvenisti, supra note 26, at 846.
189. Some writers have argued that the margin of appreciation is invoked in a meaningless manner, and constitutes 'window-dressing' for judicial activism: Arai-Takahashi, supra note 6, at 232.
190. MacDonald, 'The Margin of Appreciation', in MacDonald et al., supra note 25, at 83, 123 ('The margin of appreciation gives the flexibility needed to avoid damaging confrontations between the Court and the Contracting States...').
191. Of course, to some degree all law is politics: Mensch, 'The History of Mainstream Legal Thought', in D Kayris (ed.), The Politics of Law: A Progressive Critique (2nd edn, 1998), at 13, 33.
192. Cf Avena, supra note 2, Separate Opinion of Judge ad hoc Sepúlveda,. at paras 66-69 (affording the US discretion in implementing the judgment undermines its effectiveness).
193. But see Kennedy, supra note 41, at 1707 (resort to specific rules may be counter-productive in promoting compliance).
194. See, e.g., Ehlermann and Lockhart, supra note 4, at 494.
195. Cf. Furtado, Jr, 'Guess Who's Coming to Dinner? Protection for National Minorities in Eastern and Central Europe under the Council of Europe', 34 Columbia Hum Rts L Rev (2003) 333, at 365.
196. See, e.g., Golder, supra note 29, at 567 (Separate Opinion of Judge Fitzmaurice)
197. Johnston, supra note 63, at 221
198. Arai-Takahashi, supra note 6, at 201
199. Mahoney, supra note 50, at 60.
200. While some degree of judicial legislation is inevitable, there is often a policy choice whether or not to encourage it: Arai-Takahashi, supra note 6, at 202.
201. Cf Kennedy, supra note 41, at 1690.
202. Mahoney, supra note 50, at 77
203. Arai-Takahashi, supra note 6, at 202-203.
204. Cf SW v UK, 29 EHRR (1996) 363, at 399 ('Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen').
205. Rees, supra note 36, at 67-68
206. Tyrer v UK, 2 EHRR 1, at 10 (1978).
207. But see Arai-Takahashi, supra note 6, at 200-201 (describing objections to the 'evolving standards' methodology employed by the ECtHR).
208. Benvenisti, supra note 26, at 850
209. Croley and Jackson, supra note 38, at 209.
210. These considerations apply with special force when domestic law, which governs the operations of the domestic authorities, interferes with the manner of application of international law: Ehlermann and Lockhart, supra note 4, at 510.
211. See, e.g., Croley and Jackson, supra note 38, at 211 (legal harmony should not always trump sovereignty).
212. Cf Koskenniemi, supra note 30, at 211.
213. See Carozza, supra note 25, at 64.
214. See, e.g., Arai-Takahashi, supra note 6, at 210, 226.
215. See, e.g., Espiell, 'Self-Determination and Jus Cogens', in A Cassese (ed.), UN Law/Fundamental Rights: Two Topics in International Law (1979) 167
216. Frowein, 'Jus Cogens', in R. Bernhardt (ed.), Encyclopedia of Public International Law (1997), iii, 65, at 67.
217. Cf Legality of Nuclear Weapons, supra note 63, at 262-263 (the Court hesitated to pronounce the illegality of using nuclear weapons in circumstances where the very existence of the state was threatened).
218. See infra note 122.
219. In fact it had been argued that the natural field of application of the doctrine by the ECtHR is national emergencies: Gross, "'Once More unto the Breach": The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies', 23 Yale J Int'l L (1998) 437, at 497-498
220. Benvenisti, supra note 26, at 845.
221. For support, see Oil Platforms, supra note 1, Separate Opinion of Judge Koojimans, at para. 46 ('[T]he prohibition of force is considered to have a peremptory character. The measure of discretion to which the United States is entitled is therefore considerably more limited than if
222. See, e.g., Engel v Netherlands, 1 EHRR 647 (1976)
223. Golder, supra note 29
224. De Wilde v Belgium, 1 EHRR 373 (1971)
225. Mellacher v Austria, 12 EHRR (1990) 391
226. Goodwin v UK, 22 EHRR (1996) 123
227. Smith v UK, 29 EHRR (2000) 493
228. Pretty v UK, 35 EHRR (2002) 1
229. Dudgeon v UK, 4 EHRR (1982) 149
230. Lehideux v France, 30 EHRR (2000) 665.
231. Handyside v UK, supra note 72.
232. Ibid., at 22-23.
233. See Brems, 'The Margin of Appreciation Doctrine in the Case Law of the European Court of Human Rights', 56 Heidelberg J Int'l L (1996) 240, at 256
234. Yourow, supra note 70, at 186-196.
235. See Sunday Times v UK (1980) 2 EHRR 245, at para. 59.
236. See Rees, supra note 36
237. Yourow, supra note 70, at 54.
238. For criticism of the Court's emphasis on consensus, see Benvenisti, supra note 26, at 851-852
239. Helfer, 'Consensus, Coherence and the European Convention on Human Rights', 26 Cornell Int'l LJ (1993) 133, at 141-142
240. MacDonald, supra note 96, at 124
241. Carozza, 'Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Justice', 73 Notre Dame L Rev (1998) 1217
242. Arai-Takahashi, supra note 6, at 195-196.
243. The present author also questions the appropriateness of reliance upon consensus among states parties as an independent criterion for determining the need to apply the doctrine. However, resort to comparative study might be useful in asserting the determinacy of specific norms and in refuting claims that certain social arrangements are inevitable. See also Mahoney, supra note 50, at 74.
244. For example, see Leander v Sweden, 9 EHRR (1987) 433, at para. 59 ('[T]he national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant's right to respect for his private life').
245. See also Rekvényi; supra note 16, at 534
246. Çakici v Turkey, 31 EHRR (2001) 135, at 191-192
247. The Observer v UK, 14 EHRR (1992) 153, at 218 (Partly Dissenting Opinion of Judge Morneilla) ('It is true that the State's margin of appreciation is wider when it is a question of protecting national security than when it is a question of maintaining the authority of the judiciary by safeguarding the rights of the litigants').
248. The first case litigated by the Court, the Lawless case, also comports with this trend: Lawless v Ireland, supra note 82.
249. But see Rotaru v Romania [2000] V ECtHR 61, at 134-135
250. Smith v UK, 29 EHRR (2000) 493, at 530
251. Tinnelly & Sons v UK, 27 EHRR (1999) 249, at 288.
252. Note also that the Court held that no margin of appreciation exists at all in cases alleging torture or inhuman or degrading treatment or punishment: Chahal v UK, 23 EHRR (1997) 413, at 457.
253. For discussion of the application of the margin of appreciation doctrine to security-related ECtHR cases, see Greer, supra note 13, at 427
254. Benvenisti, supra note 26, at 845
255. Ni Aolain, supra note 87.
256. Case C-83/94, Germany v Leifer [1995] ECR I-3231.
257. Reg. (EEC) No 2603/69 establishing Common Rules for Exports, 1969 OJ (1969) L 324/25, Art. 11.
258. Leifer, supra note 23, at 3250 (emphasis added).
259. Case C-273/97, Sirdar v Army Bd [1999] ECR 7403, esp. at para. 27.
260. See, e.g., Case C-368/95, Vereinigte Familiapress Zeitungsverlags-und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-3689, at 3716
261. Case C-260/89, Elliniki Radiophonia Tileorassi AE (ERT) v Dimotiki Etairia Pliroforissis (DEP) [1991] ECR I-2925, at 2960
262. Case C-186/01, Dory v Bundesrepublik Deutschland [2003] ECR I-2479, at para. 36
263. Case C-285/98, Kreil v Bundesrepublik Deutschland [2000] ECR I-69, at 105
264. Case 131/79, R v Secretary of State for Home Affairs, ex parte Santillo [1980] ECR 1585, at 1600-1611
265. Case 34/79, R v Henn [1979] ECR 3795, at 3818-3814.
266. Carozza maintains that the ECJ's traditional deference towards human rights decisions taken at the national level is indicative of its recognition of the comparative advantage of national institutions: Carozza, supra note 25, at 55.
267. Ibid., at 55-56.
268. See, e.g., EC - Measures Concerning Meat and Meat Products (Hormones), WTO Doc. WT/DS26/R/USA (1997)
269. Underwear, supra note 16
270. Argentinean Safeguards, supra note 10.
271. See US - Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (Wheat Gluten), WTO Doc. WT/DS166/AB/R (2001), at para. 161-162
272. Zleptnig, supra note 4, at 5-6
273. Ehlermann and Lockhart, supra note 4, at 517.
274. Asbestos, supra note 10, at para. 168.
275. US-Restrictions on Imports of Tuna, 33 ILM (1994) 839, at para. 3.73 ('The reasonableness inherent in the interpretation of "necessary" was not a test of what was reasonable for a government to do, but of what a reasonable government would or could do. In this way, the panel did not substitute its judgment for that of the government').
276. However, earlier GATT case law on the applicable standards of review matter is inconsistent: Croley and Jackson, supra note 38, at 196-197 (discussing the Hatter Fur, Transformer Imports and Polyacetal Resins cases).
277. See supra note 8.
278. Note however that Art. 17.6 requires panels to exercise deference vis-à-vis both legal and factual national determinations. For discussion see Ehlermann and Lockhart, supra note 4, at 500.
279. Martinez, 'Towards an International Judicial System', 56 Stanford L Rev (2003) 429, at 519. At least in one case, a WTO arbitrator referred explicitly to the margin of appreciation doctrine: US-Tax Treatment of 'Foreign Sales Corp" (Art. 22.6 arbitration), WTO Doc. WT/DS108/ARB (2002), at para. 5 ('Not only is a Member entitled to take countermeasures that are tailored to offset the original wrongful act and the upset of the balancing of rights and obligations which that wrongful act entails, but in assessing the "appropriateness" of such countermeasures - in light of the gravity of the breach - a margin of appreciation is to be granted, due to the severity of that breach'). Essentially the same reasoning was embraced by one of the WTO arbitrations in the Bananas litigation (EC-Regime for the Importation, Sale and Distribution of Bananas (Art. 22.6 arbitration) (recourse by EC), WTO Doc. WT/DS27/ARB/ECU (2000), at paras 52-56.
280. It may be assumed that certain human rights bodies were concerned that explicit resort to the margin of appreciation doctrine might encourage states parties to challenge the universality of human rights. Arguably, the more confident ECtHR could afford to acknowledge normative pluralism.
281. For example, the Inter-American Court of Human Rights (I/A CHR) has in one of its first Advisory Opinions accepted the doctrine in the context of the right of member states to regulate naturalization procedures: Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Inter-AmCtHR, Series A, No 4 (1984), at para. 58 ('One is here dealing with values which take on concrete dimensions in the face of those real situations in which they have to be applied and which permit in each case a certain margin of appreciation in giving expression to them').
282. See also Hertzberg v Finland, UN Doc. A/37/40 (1982), at para. 10.3 ('[P]ublic morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities').
283. See, e.g., Comm. 547/1993, Mahuika v New Zealand, UN Doc. CCPR/C/70/D/ 547/1993 (2000), paras 9.10-9.11 (emphasizing the circumstantial context of the limitation upon the applicants' rights)
284. Comm. 35/1978, Aumeeruddy-Cziffra v Mauritius, UN Doc. A/36/40 (1981), at para. 9.2(b)(2)(ii) ('[T]he legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions').
285. See also Benvenisti, supra note 26, at 844-845
286. JG Merrills, The Development of International Law by the European Court of Human Rights (1993), at 19
287. Schmidt, 'Book Review: Coming to Grips with Indigenous Rights', 10 Harvard Hum Rts J(1997) 333, at 338.
288. Award on the First Question, US/UK Arbitration concerning Heathrow Airport User. Charges, 30 Nov. 1992, ch 5, at 84 (para. 2.2.6)
289. cited in Witten, 'The US-UK Arbitration Award concerning Heathrow Airport User Charges', 89 AJIL (1995) 174, at 187 n. 56.
290. D. Myers, Inc v Canada (Partial Award), 40 ELM (2001) 1408, at 1438 (emphasis added).
291. For a discussion on the suitability of the margin of appreciation doctrine to NAFTA obligations, see Freeman, 'Regulatory Expropriation Under NAFTA Chapter 11: Some Lessons From the European Court of Human Rights', 42 Columbia J Transnat'l L (2003) 177, at 211-212.
292. UNCLOS, supra note 20, Arts 73 and 292.
293. The Volga Case (Russia v Australia) (Application for Prompt Release) (Separate Opinion, Judge Cot), 42 ILM (2003) 159, at 183-186.
294. Camouco (Panama v France)(Application for Prompt Release)(Dissenting Opinions of Judges Anderson and Wolfurn), 39 ILM (2000) 666, at 690, 699.
295. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000), available at http://www.un.org/icty/pressreal/nato061300.htm.
296. See, e.g., ibid., at para. 48. One could also view the principle of complementarity (Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9 (1998), Art. 17) as indicative of the low premium placed on uniformity in international criminal law matters.
297. ICTY Prosecutor's Final Report, supra note 143,at para. 50.
298. Ibid., at para. 21.
299. Note that the customary status of the two conditions had been reaffirmed by the ICJ in Oil Platforms, supra note 1, at para. 76.
300. Ibid., at para. 73 (emphasis added).
301. Ibid, Separate Opinion of Judge Koojimans, at paras 44-46 (emphasis added).
302. Ibid., Separate Opinion of Judge Buergenthal, at para. 37 (emphasis added).
303. Ibid., at para 42.
304. For support for the majority view, see ibid., Separate Opinion of Judge Higgins, at para. 48
305. ibid., Separate Opinion of Judge Simma, at para. 11.
306. Ibid., Separate Opinion of Judge Buergenthal, at para. 37.
307. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) [1986] ICJ Rep 14, at para. 282 (emphasis added).
308. Oil Platforms, supra note 1, at para. 43.
309. Oil Platforms, supra note 154, Separate Opinion of Judge Buergenthal, at para. 37 ('The Nicaragua Court's suggestion that it may not be "purely" a matter of the subjective judgment of a party, implies that while a government's determination is ultimately subject to review by the Court, it may not substitute its judgment completely for that of the government which, in assessing whether the disputed measures were necessary, must be given the opportunity to demonstrate that its assessment of the perceived threat to its essential security interests was reasonable under the circumstances').
310. Some additional support for this proposition can be found in the Dissenting Opinion of Judge Schwebel in Nicaragua, which stated that in his view the US had acted reasonably, or 'at any rate, not unreasonably': Military and Paramilitary Activities, supra note 154, dissenting opinion of Judge Schwebel, at para. 76.
311. Gabcikovo/Nagymaros (Hungary/Slovakia), 1997 ICJ 7, at 40 (emphasis added).
312. See also ILC Commentary, supra note 61, at Art. 25, para. 17 ('[T]he interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests')(emphasis added).
313. Legality of Nuclear Weapons, supra note 53, Separate Opinion of Judge Shahabuddeen, at Part III, sec. 2 (emphasis added).
314. Ibid., at 262-263.
315. LaGrand, supra note 62.
316. Avena, supra note 2.
317. LaGrand, supra note 62, at 514.
318. Avena, supra note 2, at para. 122.
319. Ibid., at para. 131.
320. Factory at Chorzów (Germany v Poland) [1928] PCIJ, Series A, No 17, at 47 (Merits) ('[R]eparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed').
321. The Consular Assistance cases in this point mirror the judgment of the ICJ in Haya de la Torre (Colombia v Peru) [1951] ICJ Rep 71, at 83 ('Having thus defined in accordance with the Havana Convention, the legal relations between the Parties with regard to the matters referred to it, the Court has completed its task. It is unable to give any practical advice as to the various courses which might be followed with a view toward terminating the asylum, since, by doing so, it would depart from its judicial function').
322. Avena, supra note 2, at para. 141.
323. LaGrand, supra note 62, at 513.
324. Notably, the Court tended to dissociate the specific incidents underlying the proceedings from the 'bigger picture' - the tanker war in the Gulf, Iran's hostile statements against the US and its repeated violations of the freedom of navigation in the Gulf area. Cf Young, 'Destruction of Property (on an International Scale): The Recent Oil Platforms Case and the International Court of Justice's Inconsistent Commentary on the Use of Force by the United States', 30 N Carolina J Int'l L & Commercial Reg (2004) 335, at 371
325. Taft IV; 'Self-Defense and the Oil Platforms Decision', 29 Yale J Int'l L (2004) 295, at 305.
326. Oil Platforms, supra note 1, at para. 51.
327. Ibid., at para. 59.
328. Wall in the OPT, supra note 3, at paras 151-153.
329. Perhaps, the Court felt that Israel was not entitled to comity, because of its past violations of international law; however, the opinion fails to spell out this consideration. Cf Zleptnig, supra note 4, at 4 (the WTO and the ECJ seem to accord greater deference to more competent and credible national authorities).
330. HCJ 2056/04 Beit Sourik Village v Government of Israel, 58(5) PD 807, paras 80 and 85.
331. One may also note that the ICJ's sweeping assertion that the entire route of the barrier in the Occupied Territories is unnecessary from a military point of view, without distinguishing between the different military functions of different barrier segments, represents anything but a cautious approach to the application of a highly uncertain body of law to a complex situation. See, e.g., Wedgwood, 'The ICJ Advisory Opinion on the Israeli Security Fence and the Limits of Self-Defense', 99 AJIL (2005) 52, at 59
332. Kretzmer, 'The Advisory Opinion: The Light Treatment of International Humanitarian Law', 99 AJIL (2005) 88, at 100.
333. This lack of restraint, combined with the failure to grant Israeli authorities any margin of appreciation, detracted from the acceptability of the opinion in Israel. See Shany, 'Capacities and Inadequacies: A Look at the Two Separation Barrier Cases', 37 Israeli L Rev (2005) 230.