Two concepts of the margin of appreciation

Oxford Journal of Legal Studies

Volumn 26, Issue 4, 2006, Pages 705-732

  Letsas, George ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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[No Author keywords available]

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EID: 33845698707     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql030     Document Type: Article

References (117)

1. Judge Christos Rozakis, Concurring Opinion in Odievre v France (2004) 38 EHRR 43.
2. See R. MacDonald, 'The Margin of Appreciation' in Macdonald, Matscher and Petzold (eds), The European System for the Protection of Human Rights (1993) at 85.
3. H. Yourow, The Margin of Appreciation Doctrine (1996).
4. Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (2002).
5. See G. Letsas, 'The Truth in Autonomous Concepts: How to interpret the ECHR' (2004) 2 European Journal of International Law 279.
6. See R. Dworkin, Law's Empire (1986) at chs 2 and 3.
7. See also N. Stavropoulos, 'Interpretivism', entry in the Stanford Encyclopaedia of Philosophy: http://www.seop.leeds.ac.uk/entries/ law-interpretivist/index.html.
8. Arai-Takahashi, above n 4 at 14.
9. Macdonald, above n 2 at 123.
10. cf. Dworkin, above n 6 at 93ff.
11. One need not take justification of state coercion as a conceptually necessary feature of the point of all legal practices. Interpretivism should leave open what point it is appropriate to attribute to legal practice. For discussion on whether Dworkin is committed to attributing this point to law and for related criticism see J. Dickson, 'Methodology in Jurisprudence: A Critical Survey' (2004) 10 Legal Theory 117 at 141ff.
12. cf. J. Griffin 'Discrepancies between the Best Philosophical Account of Human Rights and the International Law of Human Rights', 10 Telos (2001) 133.
13. Protocol 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms which contains a general prohibition of discrimination entered into force on 1 April 2005.
14. On Protocol 14 see S. Greer, 'Protocol 14 and the Future of the European Court of Human Rights' (2005) Public Law 83-106.
15. It also follows that comparisons between what different human rights courts have decided on specific rights are too quick: There is no reason to assume in advance that national constitutional courts, regional supranational courts and global human rights committees should reach the same result in interpreting specific rights. The decisions of these different bodies are primarily propositions of the law of the respective instrument, not accounts of the concept of a particular human right. Dworkin does well to frame his theory in terms of the truth value of propositions of law in Law's Empire.
16. It is an important issue whether and when states may sometimes be under an obligation to take such measures, in the sense of a positive duty to interfere with someone's right for the sake of protecting the rights of others. In Handyside v United Kingdom (1979-80) 1 EHRR 737, the ECtHR observed that restrictions under the accommodation clauses are of an optional character.
17. I prefer this formulation to the distinction between a prima facie interference with a right and an-all-things-considered violation (or non-violation). I wish to avoid the suggestion that rights (as opposed to fundamental freedoms) can be interfered with to a lesser or greater extent.
18. See, e.g. Art 18, para 3; Art 19, para 3; Art 20; and Art 22, para 2 of the ICCPR. The margin of appreciation has however also been used in ECHR articles that have no accommodation clause. For a full list of the articles in which the doctrine has been used see Arai-Takahashi, above n 4.
19. See Art 8 §2; Art 9 2§; Art 102§; Art 11 2§ and P1, Art 12§ ECHR.
20. De Wilde, Ooms and Versyp ('Vagrancy case') (1979-80) 1 EHRR 373, para. 93.
21. Arai-Takahashi, above n 4 at 14.
22. F. Matscher, 'Methods of Interpretation of the Convention' in Macdonald, Matscher and Petzold' (eds), The European System for the Protection of Human Rights (1993) at 79.
23. Klass v Germany (1979-1980) 2 EHRR 214.
24. See MacDonald, above n 2 at 85.
25. R. Singh et al., 'Is there a role for the "Margin of Appreciation" in national law after the Human Rights Act?' (1999) 1 European Human Rights Law Review 4.
26. Van Kuck v Germany (2003) 37 EHRR 973, at paras 84-5.
27. Janowski v Poland (2000) 29 EHRR 705, at para 35.
28. Odievre v France (2003), concurring opinion of Judge Rozakis.
29. Needless to say one could argue that the Court should stop using the term margin of appreciation whenever the issue is to do with the moral basis of human rights as opposed to the limits of judicial review of the European Court by virtue of the fact that the ECHR is an international convention (structural margin of appreciation). I choose to refer to claims about the moral basis of rights as the substantive concept of the margin of appreciation, only because the Court keeps using the label when it applies the proportionality test, often without offering a basis for its final conclusion.
30. See A. McHarg, 'Reconciling Human Rights and Public Interest' (1999) 62 Modern Law Review 671.
31. For an attempt to systematize the approach of the Court to various Convention rights see S. Greer, 'Constitutionalizing Adjudication under the European Convention on Human Rights' (2003) 23 OJLS 405.
32. R.G. Frey, 'Act-utilitarianism' in H. LaFollete, The Blackwell Companion to Ethical Theory (2000) at 165.
33. See Jeremy Waldron (ed.), Theories of Rights (1984) at 15. Waldron distinguishes a weak priority interest model and a lexical priority model.
34. See, e.g. Wingrove v United Kingdom (1997) 24 EHRR 1.
35. Arai-Takahashi, above n 4 at 15.
36. Hatton v United Kingdom (2001) 34 EHRR 1, at para 97.
37. See the exchange between Richard Pildes and Jeremy Waldron: R. Pildes, 'Why Rights Are Not Trumps: Social Meanings, Expressive Harms, And Constitutionalism' (1998) 17 Journal of Legal Studies 725
38. J. Waldron, 'Pildes on Dworkin's Theory of Rights' (2000) 29 Journal of Legal Studies 309 and Pildes' response, 'Dworkin's Two Conceptions of Rights' at 309.
39. Interest theories of rights have been defended by David Lyons, Joseph Raz and Neil MacCormick. See Waldron, above n 31 at 6.
40. J. Raz, The Morality of Freedom (1998) at 166.
41. On agent-neutrality and agent-relativity see Amartya Sen 'Rights and Agency', 11 Philosophy and Public Affairs (1982) 3-39.
42. Dworkin, 'Rights as Trumps' in Waldron (ed.), above n 31 at 161.
43. Raz, above n 36 at 246.
44. Raz argues that some civil rights promote a certain public culture which in turn contributes to the well-being of all individuals, see Raz, above n 36, ch 10. It would follow that the extent to which protection of a specific right promotes public goods in each given case is relevant for defining the limits of that right.
45. See, e.g. Sheffield and Horsham v UK (1999) 27 EHRR 163, at para 66.
46. J. Waldron, Liberal Rights (1993) at 212.
47. Ashingdane v United Kingdom (1985) 7 EHRR 528.
48. Also in Buckley v United Kingdom (1997) 23 EHRR 101, at para 75: 'It is not for the Court to substitute its own view of what would be the best policy in the planning sphere or the most appropriate individual measure in planning cases'.
49. For the idea of a 'minimum level of compatibility' see P. Carozza 'Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Human Rights', 73 Notre Dame Law Review (1998) 1217 at 1228.
50. Hart objected to Dworkin's theory of rights as trumps that the problem with external preferences is that they violate autonomy, not that they violate equality (as a form of double-counting). See his 'Between Rights and Utility' in H.L.A. Hart, Essays in Jurisprudence and Philosophy (1983), at 208.
51. In his response to Hart, Dworkin seems to concede the point but to emphasize that protection of autonomy flows from the duty to treat people with equal respect and concern, rather than a duty to protect their interests. See Dworkin, above n 39 at 161. Dworkin's anti-perfectionist moral theory is developed in greater detail in his Sovereign Virtue (2000), ch 6.
52. Waldron, above n 35 at 303.
53. Dudgeon v United Kingdom (1982) 4 EHRR 149.
54. Goodwin v United Kingdom (2002) 35 EHRR 447.
55. C. Nowlin, 'The Protection of Morals Under the European Convention for the Protection of Human Rights and Fundamental Freedoms', 24 Human Rights Quarterly (2002) 264.
56. H.L.A. Hart, Law, Liberty and Morality (1963) at 20.
57. See L. Helfer and A.M. Slaughter 'Toward a Theory of Effective Supranational Adjudication', 107 Yale Law Journal (1997) 273 at 316-17.
58. E. Brems, 'The Margin of Appreciation Doctrine in the Case-law of the European Court of Human Rights' (1996) 56 Zeitschrift Fur Auslandisches Offentliches Recht Und Volkerrecht 240 at 304.
59. The Court usually says that it will review the complained acts and that national supervision goes 'hand in hand with European supervision'. See Handyside v UK, para 49.
60. See R. Ryssdall, 'The Coming of Age of the European Convention of Human Rights' (1996) 18 European Human Rights Law Review 24.
61. See H. Petzold, 'The Convention and the Principle of Subsidiarity' in R. MacDonald et al. (eds), The European System for the Protection of Human Rights (1993) at 41.
62. Ibid at 46.
63. Ibid at 49.
64. See E. Benvenisti 'Margin of Appreciation, Consensus and Universal Standards', 31 New York University Journal of International Law and Politics (1998-99) 843.
65. Ireland v United Kingdom (1979-80) 2 EHRR 25, at para 207.
66. See also Brannigan and McBride v United Kingdom (1994) 17 EHRR 539, at para 43
67. Aksoy v Turkey (1997) 23 EHRR 553, at para 68
68. Demir and ors v Turkey (2001) 33 EHRR 43, at para 43.
69. See O. Gross and F.N. Aolain, 'From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights' 23 Human Rights Quarterly (2001) 625
70. O. Gross '"Once More unto the Breach": The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies', 23 The Yale Journal of International Law (1998) 437
71. S. Marks, 'Civil Liberties at the Margin: The UK Derogation and the European Court of Human Rights' (1995) 15 OJLS 69.
72. James v United Kingdom (1986) 8 EHRR 123, para 46
73. Lithgow v United Kingdom (1986) 8 EHRR 329, para 122
74. Former King of Greece v Greece (2001) 33 EHRR 516, para 87
75. Pincova and Pinc v Czech Republic, Reports 2002-VIII, para 47
76. Brannigan and McBride v United Kingdom, at para 43
77. Gasus Dosier-und Frdertechnik GmbH v the Netherlands (1995) 20 EHRR 403, at para 60
78. Malama v Greece (2001), Reports 2001-II, at para 46
79. Jokela v Finland (2003) 37 EHRR 26, at para 52
80. Jahn v Germany (Apps 46720/99, 72203/01 and 72552/01), judgment of 22 January 2004, at para 80.
81. Gillow v United Kingdom (1986) 11 EHRR 355, at para 56
82. Buckley v United Kingdom (1997) 23 EHRR 101 at para 75.
83. Soderback v Sweden (1998) 29 EHRR 95, at para 33
84. Buscemi v Italy, Reports 1999-VI, at para 55
85. Hokkanen v Finland (1994) 19 EHRR 139, at para 64.
86. Handyside v United Kingdom (1979-80) 1 EHRR 737.
87. Ibid, para 48.
88. Sunday Times v United Kingdom (1979-80) 2 EHRR 245.
89. Ibid, para 59.
90. Muller and ors v Switzerland (1991) 13 EHRR 212, at para 35.
91. Otto-Preminger-Institut v Austria (1995) 19 EHRR 34, at para 48.
92. Wingrove v United Kingdom (1997) 24 EHRR 1.
93. Ibid, paras 45-8.
94. Ibid, para 58.
95. Murphy v Ireland (2004) 38 EHRR 212, at para 67.
96. For a criticism of the Court's judgment in this case see A. Geddis, 'You Can't Say "GOD" on The Radio: Freedom Of Expression, Religious Advertising and the Broadcast Media After Murphy v. Ireland' (2004) 2 European Human Rights Law Review 181.
97. Ibid, paras 63-4.
98. I do not mean to imply of course that these cases were wrongly decided just because the Court found no violation. I only wish to highlight that whenever the Court makes reference to the lack of consensus among Contracting States and to the idea that national authorities are better placed, its final judgment is usually against the applicant. I am therefore interested in assessing the merits of the structural concept of the margin of appreciation because it appears strongly to influence the Court's final determination. Needless to say, some of the above cases may have been correctly decided regardless of whether the Court was justified in using the structural concept of the margin of appreciation.
99. Rees v United Kingdom (1987) 9 EHRR 56, at para 37.
100. Cossey v United Kingdom (1991) 13 EHRR 622, at para 40.
101. Sheffield and Horsham, paras 57-8.
102. I v United Kingdom (2003) 40 EHRR 967.
103. Goodwin v United Kingdom (2002) 35 EHRR 447, at para 74.
104. Ibid, paras 84-5.
105. Interestingly the Court noted that the lack of a common approach among the 43 member states is hardly surprising and what is important is 'clear and uncontested evidence of a continuing international trend in favour not only of increased social acceptance of transsexuals but of legal recognition of the new sexual identity of post-operative transsexuals'. Cf. also the more recent Van Kuck v Germany (2003) 37 EHRR 973, where the Court found a violation of Art 6 and Art 8 ECHR.
106. Frette v France (2004) 38 EHRR 438, at para 36.
107. Ibid at para 35.
108. The applicant cited the US Supreme Court decision, Palmore v Sidoti 466 US 429 (1984).
109. Ibid at para 41.
110. Wingrove v United Kingdom (1997) 24 EHRR 1, paras 45-8.
111. This seems to capture the reasoning of the House of Lords judgment in A (FC) and ors; (X) FC and another v Secretary of State for the Home Department [2004] UKHL 56.
112. See for instance, J. Waldron, Law and Disagreement (1999)
113. J. Waldron, 'A Rights-based critique of Constitutional Rights' (1993) 13 OJLS 18
114. and J. Waldron 'The Core of the case against Judicial Review', 115 Yale Law Journal (2006) 1346. Note that Waldron's argument against judicial review assumes that rights are founded upon an interest-based theory and might not be as valid if directed against a reason-blocking theory.
115. See Helfer and Slaughter, above n 52 at 317.
116. See also Benvenisti, above n 59 at 851. Benvenisti notes correctly that this argument is based on the flawed idea that states can only be bound either through their own consent or by resorting to the notion of emerging custom or consensus.
117. Indeed, it is not accidental that an interest-theory of rights coheres with viewing judicial duties in a way that is not governed exclusively by a distinct political value assigned to law but is sensitive to justice-based reasons to promote individual interests. Raz's moral and legal philosophy provides an excellent example of this combination.