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the court and the member states: procedural aspects 57

away from ‘objective’ admissibility criteria into the realm of ‘politics’, and in ‘negotiating’ with states parties. Moreover, this is said to risk giving states parties the idea that certain human rights violations are less important (and therefore, more acceptable) than others.83

Writers coming from countries which accept a larger degree of judicial law-making, and who may also come from countries with relatively wellfunctioning systems of protection of human rights, have perhaps less difficulty in giving the Court the power to pick and choose amongst applications.

I agree with Michael O’Boyle when he states that ‘the debate about possible restrictions on the right of individual petition is a false one, in which the passionate confront the pragmatic in a never ending discussion’.84 He adds that the Evaluation Group, the Woolf and Wise Persons reports, never proposed such a step because the Court’s existing differentiated system for dealing with applications has in fact found the ‘right balance between maintaining the right of petition and weeding out unfounded applications’.85

The presentation of the existing filtering in section 4 above shows that there is already something resembling a certiorari system. Even before the introduction of the ‘no significant disadvantage’ rule, the manifestly ill-founded admissibility ground provides, inter alia, for the possibility of picking and choosing. It involves a discretionary decision by the Court that something is not a violation of the Convention.86 It has existed from the beginning of the Convention system and is thus hardly ‘alien’ to it.

Moreover, the priority policy87 means that, instead of picking and choosing individual cases, whole classes of complaint will not be addressed. In other words, the message has already gone out that some human rights violations are less important than others. But the priority policy affects the high-count states most. And to be cynical, the Court can put up with a degree of loss of legitimacy amongst complainants from these states. It does not want lots of inadmissible applications. And

86Compare Harris et al., who note that it covers ‘a spectrum of standards’, ‘ranging from totally unmeritorious to no prima facie breach’ and regard it as something of a misnomer ‘[how can] a case be rejected as manifestly ill-founded after extensive legal argument, often involving an oral hearing and a lengthy reasoned decision of the Court on which not all judges agree?’: D.J. Harris et al., Law of the ECHR, 2nd edn (Oxford University Press, 2009) at 785.

87Section 5.

even if it loses status, it will probably still have a higher status than the national supreme/constitutional courts in these states.

Wildhaber argues that the issue is really deciding what cases the Court should handle and what cases it should not. He proposes nine categories of cases, which, having been declared admissible, should be taken up for decisions on the merits, namely: (a) right to life, prohibition of torture, prohibition of slavery; (b) long periods of illegal detention; (c) wholly arbitrary and unfair procedures; (d) overruling of well-established ECtHR precedents; (e) issues gravely affecting national constitutions;

(f) issues vital to the survival of a democracy and a democracy’s right to defend itself against its enemies; (g) guidelines for structural and systemic problems; (h) pilot judgments; and (i) interstate applications.88 To those who might argue that this is radical, he responds that, on the contrary, the end result would be similar to the system presently in force and that he is only being honest.

Of course, it is not a good argument to say that the Court should become more ‘constitutional’ because it is no longer capable of doing the job of dispensing individual justice. But I do not see Wildhaber’s and others’ similar arguments in this light. They are, rather, about finding a legitimate role for the Court where most states in the system have wellfunctioning national mechanisms and institutions for protecting human rights, but some states have very poor such remedies or mechanisms (and are not very democratic either).

What sort of Court should exist for such a situation? This is not easy to answer. It is tied up with the future accession of the EU to the ECHR. Speculation is beyond the scope of the present chapter. Suffice it to say that I do not think that the states parties, in the foreseeable future, will accept a Court where they do not have ‘their own’ judge. And once you have a Court of 47 judges, it naturally has to find something to do. Human rights, ultimately, are about controversial moral and political (resource distribution) issues. There will always be, and should be, room for disagreements between different political communities about these questions. Amongst – relatively – like-minded states there should thus be room for a body which can give an objective second opinion – in the form of a binding judgment – on the need for a particular restriction in a right in a concrete case.89

88L. Wildhaber, ‘Rethinking the European Court of Human Rights’, in Christoffersen and Madsen (eds.), The European Court of Human Rights between Law and Politics, 204–29 at 225.

89I look at some of these issues in more detail in ‘Competing Rights?’, supra note 69.

reasoning in its judgments. This quality relates to the interpretation of the Convention, including how well it builds upon its own case law. It also means consistency in case law. The legitimacy of the Court is naturally also damaged if it misunderstands national law,91 or goes against a national supreme or constitutional court and does not motivate its reasoning sufficiently.92 Irritation can also be caused at national level where it explicitly reverses its own case law where a state has relied upon the earlier interpretation to frame its law.93

How the Court applies the principle of subsidiarity is also vital. This is a large issue, discussed by many. Suffice it to say here that the challenge to the Court, in every important case, is finding the right balance between ‘guidance’ and ‘interference’. In drawing this balance, the Court has to remember that its case law operates not just vis-à-vis the respondent state, but states generally, and moreover, can affect the domestic power balance within states. I would say that, as long as it does this, the Court will perform a useful function. The radical changes that have been made in procedure mean that it can continue to ‘muddle through’. The big changes necessary to reduce its caseload lie not in its hands, but in the hands of the high-count states. I do not see this changing in the next few years. If, as a direct or indirect result of the economic crisis, we see more authoritarian governments emerging and/or more violations of the rights of the disadvantaged, then we can expect new high-count states to join the present group. The huge caseload means that there are losers who

91See, e.g., the problems caused to the UK by the ruling in ECtHR, Osman v. UK (Appl. No. 23452/94), Judgment (Grand Chamber), 28 October 1998, Reports 1998-VIII, that it was violation of art. 6 for a court summarily to dismiss a case where it had been concluded that it was not fair, just or reasonable to impose a duty of care, later corrected in ECtHR, Z and others v. UK (Appl. No. 29392/95), Judgment (Grand Chamber), 10 May 2001, Reports 2001-V, paras. 87, 98 and 101.

92See ECtHR, Von Hannover v. Germany (Appl. No. 59320/00), Judgment (Third Section), 24 June 2004, Reports 2004-VI, which later caused the German Constitutional Court to amend its case law. However, the thinly motivated balance drawn in the case between integrity and freedom of expression has also proved problematic to states such as Sweden, which has a constitutional protection which favours the second over the first value. The Court later ‘clarified’ its judgment in ECtHR, Von Hannover (No. 2) v. Germany (Appl. Nos. 40660 and 60641/08), Judgment (Grand Chamber), 7 February 2012, Reports 2012.

93See, e.g., the problems caused for the Swedish system of administrative tax penalties by the explicit change in case law in ECtHR, Zolotukhin v. Russia (Appl. No. 14939/03), Judgment (Grand Chamber), 10 February 2009, Reports 2009.

the court and the member states: procedural aspects 61

will, with good reason, be disenchanted with the Court. The losers in the present system are those applicants who have a good case on the merits, but concerning an issue which is not a matter of priority. Adopting proposals such as Wildhaber’s would not change this, but it would have the virtue of being honest with these applicants.

criticism than praise.8 For this reason, we need to examine at length the main strands of criticisms before shifting our analysis to some positive features that this chapter defends in later sections. By undertaking theoretical inquiries into the nature and the function of the margin of appreciation doctrine, this chapter aims to ascertain sustainable rationales for the application of this doctrine in the ECHR context.

2.The origin and development of a margin of appreciation

2.1The doctrinal mimesis from theories of administrative discretion

It is possible to argue that the margin of appreciation, conceived as the doctrine of discretion given to national authorities, has developed as a doctrinal mimesis of comparable theories on administrative discretion under national administrative laws. The pervasiveness of discourses on the variable scope of a margin of appreciation is a clear indication of the impact that the doctrines on national public law have had on the discourse on international human rights law.9 However, it is clear that while they represent the cases of isomorphism, structurally there is an important difference between the margin of appreciation and the doctrine of administrative discretion. On one hand, the former deals with the ‘downward’ deference given to the national authorities in the vertical relationship between international and national organs. On the other hand, the doctrines on administrative discretion serve on a horizontal level in the domestic context, and they explain the inter-governmental distribution of power in terms of discretion given by the judiciary to administrative agents.

The doctrine on administrative discretion can be found in the jurisprudence of all the systems of administrative law within civil law jurisdictions.10 Among them, the highly systematised and refined doctrinal

European Journal of International Law 16:5 (2005) (hereinafter Shany, ‘Toward a General Margin of Appreciation Doctrine’) 907–40.

8See P. Mahoney, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’, Human Rights Law Journal 19:1 (1998) (hereinafter Mahoney, ‘Marvellous Richness of Diversity’) 1–6.

9P.G. Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’, American Journal of International Law 97 (2003) 38–79 (hereinafter Carozza, ‘Subsidiarity’), at 62.

10F. Matscher, ‘Methods of Interpretation of the Convention’, in Macdonald et al. (eds.),

The European System for the Protection of Human Rights, 63–81, at 76.

discourses on administrative discretion in Germany stand out.11 Nevertheless, the German administrative courts are distinctly much more intent on narrowing the parameters of administrative discretion (Ermessensspielraum) than the French counterparts, or the ECtHR when invoking the notion of a margin of appreciation.12 The conceptual dimension of a margin of appreciation is covalent with the doctrines on variable intensity/standard of review,13 deference, and judicial self-restraint14 that have been fleshed out in the US Supreme Court’s jurisprudence.15

2.2 The genesis and evolution of a margin of appreciation in the jurisprudence of the ECHR

The first seed of the margin of appreciation doctrine was sown in the context of a derogation clause under the ECHR. The Commission probably never foresaw that its casual reference to the term ‘a certain measure of discretion’, which the UK authorities were allowed to exercise in evaluating the proportionality of a derogating measure in relation to the exigency in the then British colony of Cyprus, heralded the inception

11See A. Bleckmann, ‘Der Beurteilungsspielraum in Europa – und im Völkerrecht’, Europäische Grundrechte Zeitschrift (1979) 485–95, at 490–2, and the literature cited in infra. n. 38; G. Nolte, ‘General Principles of German and European Administrative Law – A Comparison in Historical Perspective’, Modern Law Review 57 (1994) 191–212; and S. Oeter, ‘Die Kontrolldichte hinsichtlich unbestimmter Begriffe und des Ermessens’, J.A. Frowein (ed.), Die Kontrolldichte bei der gerichtlichen Überprüfung von Handlungen der Verwaltung (Berlin: Springer, 1993), at 266–77. For a comparative examination of German administrative law and common law, see M.P. Singh, German Administrative Law – In Common Law Perspective, 2nd edn (Berlin: Springer, 2001).

12See Y. Arai-Takahashi, ‘Administrative Discretion in German Law: Doctrinal Discourse Revisited’, European Public Law 6:1 (2000) 69–80 (hereinafter Arai-Takahashi, ‘Administrative Discretion in German Law’); and Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Antwerp: Intersentia, 2002) (hereinafter Arai-Takahashi, The Margin of Appreciation), at 3.

13Macdonald, ‘The Margin of Appreciation’, at 84; and T. O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights’, Human Rights Quarterly 4 (1982) 474–96, at 478.

14Ibid., at 477.

15Judicial deference is understood as a form of judicial restraint that debars international judges from examining de novo and second-guessing the decisions reached by the national authorities: Letsas, ‘Two Concepts of the Margin of Appreciation’, at 722. Indeed, in Victorian England, Jeremy Bentham had already intimated the constitutional constraint on the right of judges to annul laws enacted by the Parliament: J. Bentham, ‘A Fragment on Government’, in F.C. Montague (ed.), A Fragment of Government (Oxford: Clarendon Press, 1891), at 221, para. XXXII.

of a long ‘saga’ of one of the most controversial doctrines of the ECHR.16 Shortly afterwards, this rudimentary concept was replicated by the Court in the Lawless case, where the Irish government was accorded ‘a certain discretion – a certain margin of appreciation’ in assessing the existence of public emergency.17 Any denominational doubt over this crude formula was soon to be settled in favour of the term ‘margin of appreciation’ in the subsequent case of Ireland v. UK, where the Court recognised the sliding scale on which the ambit of margin would vary. There, the national authorities confronted with emergency circumstances were given a ‘wide margin of appreciation’ in assessing: first, the ‘fact-intensive’ and more epistemic question of the existence or otherwise of an emergency; and second, a more technical question of the nature and scope of derogating measures chosen to stave it off.18

Retrospectively, the first invocation of this concept outside the context of derogation was almost accidental. This was in the Norwegian case relating to forced labour under article 4, in which the Commission drew an analogy of a state of emergency under article 15 in relation to the dire shortage of dentists in a sparsely populated region.19 Thereafter, until the late 1970s, the Strasbourg organs’ application of the concept of margin of appreciation was experimental. The concept remained far from being a ‘doctrine’. Their underlying thought on the margin of appreciation was closely tied to the concept of subsidiarity. This can be gleaned from the

16ECommHR, Greece v. UK (Cyprus Case) (Appl. No. 176/56), YB 2 (1958–9), 174, at 176.

17ECommHR, Lawless v. Ireland (Appl. No. 332/57), Report (Commission), 19 December 1959, Series. Vol. 1 (1960–1), at 82.

18ECtHR, Ireland v. UK (Appl. No. 5310/71), Judgment (Plenary), 18 January 1978, Series A, Vol. 25, para. 207.

19The relevant paragraph reads as follows:

the Commission has frequently held that, although a certain margin of appreciation should be given to a government in determining the existence of a public emergency within the meaning of Article 15 in its own country, the Commission has the competence and the duty to examine and pronounce upon the consistency with the Convention of a government’s determination of this question … in the analogous circumstances of the present case, the Commission cannot question the judgment of the Norwegian Government and Parliament as to the existence of an emergency as there is evidence before the Commission showing reasonable grounds for such judgment.

ECommHR, Iversen v. Norway (Appl. No. 1468/62), Decision (Commission), 17 December 1963, YB 6 (1963), 278, at 330.