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authors criticise the process of balancing for dispensing with, or worse, even impairing, substantive rationalisation based on political morality.68 In the present author’s view, when invoking a margin of appreciation in assessing the balance between a human right and a social end, the Court should provide moral rationales that can help delineate the boundaries of individual persons’ autonomy within the emerging ‘constitutional’ framework of the ECHR.69

3.6The balance between competing rights and freedoms

The margin of appreciation can also serve to demarcate the conceptual parameters of two rival rights and liberties claimed by individual persons. This operational sphere is not dissimilar to the cases in which the margin of appreciation is invoked to assess a reasonable or fair balance between an individual person’s right and the common good. Mowbray observes that weighing in balance the rights at stake, as well as the gains and losses of different individuals involved in the national legal system, is ‘an exceptionally difficult exercise’ that calls for, ‘in the nature of things, a wide margin of appreciation’.70

A clash of rights can be exemplified in a number of cases, including the case of conflict between the privacy right grounded under article 8 and the freedom of expression of the media enunciated under article 10.71 The discordance between two countervailing rights can also be contemplated in the case of limitations on the right of access of biological parents to their

68 See, for instance, S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?: A Rejoinder to Madhav Khosla’, International Journal of Constitutional Law 8:2 (2010) 307–10, at 309.

69Compare Pavlakos, ‘Constitutional Rights’. One can postulate that the Court’s balancing is a species of ‘constitutional rights reasoning’, and that it is in the process of ‘constitutionalising’ the ECHR, that is, transforming the normative significance of this regional human rights treaty into a systematic, uniform and vertical normative order grounded on effective guarantees of human rights in Europe.

70Mowbray, ‘A Study of the Principle of Fair Balance’, at 313.

71See, for instance, ECtHR, Axel Springer AG v. Germany (Appl. No. 39954/08), Judgment (Grand Chamber), 7 February 2012, not reported, para. 88; and ECtHR, Von Hannover v. Germany (No. 2) (Appl. Nos. 40660 and 60641/08), Judgment (Grand Chamber), 7 February 2012, not reported, para. 107. See also ECtHR, Palomo Sánchez and Others v. Spain (Appl. Nos. 28955, 28957, 28959 and 28964/06), Judgment (Grand Chamber), 12 September 2011, Reports 2011, para. 57 (the clash between the right to honour and reputation and free speech); and ECtHR, MGN Limited v. The United Kingdom (Appl. No. 39401/04), Judgment (Fourth Section), 18 January 2011 (breach of confidentiality and the free speech right of the press), not reported, paras. 150 and 155.

children placed in foster parents’ custody,72 and in the case of a welfare authority’s intervention to remove a child from his/her natural parents on the basis of emergency (or normal) care orders. In those cases disputed under article 8, the social-democratic ethos of national societies that prioritise the well-being of children may contravene the idea of privacy and family life (including natural parents’ access to their children).73 Further, a similarly intractable friction of two rights is discernible in case of the national measures to constrain Holocaust denials, and other genres of odious hate speeches.74 Given the special historical experience, it is legitimate to be vigilant of the virulent and rampant dissemination of neo-Nazi or other extremist publications in many continental European countries.

4.Main strands of criticism against the margin

of appreciation doctrine

4.1 Overview

The margin of appreciation is a judge-made doctrine that lacks explicit legal basis in the Convention text.75 As an interpretive technique of

72 See, inter alia, ECtHR, Olsson v. Sweden (No. 1) (Appl. No. 10465/83), Judgment (Plenary), 24 March 1988, Series A, Vol. 130; ECtHR, Eriksson v. Sweden (Appl. No. 11373/85), Judgment (Plenary), 22 June 1989, Series A, Vol. 156; ECtHR, Margareta and Roger Andersson v. Sweden (Appl. No. 12963/87), Judgment (Chamber), 25 February 1992, Series A, Vol. 226-A; ECtHR, Johansen v. Norway (Appl. No. 17383/90), Judgment (Chamber), 7 August 1996, Reports 1996-III; and ECtHR, K and T v. Finland (Appl. No. 25702/94), Judgment (Grand Chamber), 12 July 2001, Reports 2001-VII.

73 See, inter alia, ECtHR, Elsholz v. Germany (Appl. No. 25735/94), Judgment (Grand Chamber), 13 July 2000, Reports 2000-VIII, para. 49 (examination under art. 8 of the question of father’s right to access to a child born out of wedlock, after his relationship with child’s mother broke up); and ECtHR, Sahin v. Germany (Appl. No. 30943/96), Judgment (Grand Chamber), 8 July 2003 (a father’s right of access to a child born out of wedlock, examined under art. 14 taken in tandem with art. 8), not reported. See also ECtHR, K and T v. Finland (Appl. No. 25702/94), Judgment (Grand Chamber), 12 July 2001, Reports 2001-VII (an emergency care order and a normal care order in relation to a psychiatrically ill mother).

74ECtHR, Lehideux and Isorni v. France (Appl. No. 24662/94), Judgment (Grand Chamber), 23 September 1998, Reports 1998-VII; ECtHR, Garaudy v. France (Appl. No. 65831/ 01), Decision (Fourth Section), 24 June 2003, Reports 2003-IX; ECtHR, Chauvy v. France (Appl. No. 64915/01), Judgment (Second Section), 29 June 2004, Reports 2004-VI. Compare ECtHR, Monnat v. Switzerland (Appl. No. 73604/01), Judgment (Third Section), 21 September 2006, Reports 2006-X. See also Human Rights Committee (HRC), Robert Faurisson v. France, Communication No. 550/1993, Decision on Admissibility, 19 July 1995; Decision on the Merits, 8 November 1996, UN Doc. CCPR/C/58/D/ 550/1993 (1996).

75Spielmann, ‘Allowing the Right Margin’, at 2.

adjudicative justification in a specific case, the margin of appreciation doctrine is criticised for furnishing only ‘a very thin analytical basis’ for a systematic politico-legal or ‘constitutional’ thinking of the ECHR rights.76 The Strasbourg Court’s judicial self-restraint based on a broad margin of appreciation may go so far as to be approximated to such a lax test as ‘the test for reasonableness [that] signifies little more than a lack of arbitrariness’.77 Without succumbing to legal scepticism, one might even contend that lurking beneath the application of the margin of appreciation doctrine is the presumptive Conventionnalité of national measures. Such a presumption may weigh heavily on the onus of proof required of individual applicants. As noted in the Introduction, in view of the prevalence of criticisms levelled at the use of this doctrine in the existing literature, it is of special importance to summarise several strands of criticisms.

4.2 Diluting normative expectation and inconsistent human rights standards

First, the margin of appreciation doctrine is condemned for its inconsistent and opaque modality of operation.78 Vagueness and indeterminacy of normative meaning might stultify the rationality expectation.79 The proponents of the certainty of legal rules charge the doctrine for vitiating

76Carozza, ‘Subsidiarity’, at 69–70; Greer, ‘The Margin of Appreciation’, at 32; Lord Lester of Herne Hill, ‘Universal versus Subsidiarity: A Reply’, European Human Rights Law Review (1998) 73–81, at 75; O. de Schutter, ‘L’Interprétation de la Convention Européenne des Droits de l’Homme: un Essai en Démolition’, Revue de Droit International de Sciences Diplomatiques, Politiques, et Sociales 70 (1992) 83–127.

77P. Keller, ‘Re-thinking Ethnic and Cultural Rights in Europe’, Oxford Journal of Legal Studies 18 (1998) 29–59, at 52–3. See also the Wednesbury unreasonableness principle established in English law: G. de Búrca, ‘The Influence of European Legal Concepts on UK Law: Proportionality and Wednesbury Unreasonableness’, European Public Law 3 (1993) 561–87; Associated Provincial Picture Houses Ltd v. Wednesbury Corporation

[1948] 1 KB 223. This principle was largely criticised as giving too much deference to unreasonable agents without articulating principled criteria: A. Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’, Public Law (1987) 368.

78The inconsistent element is most salient seen in the case law on art. 10 ECHR. For the causes célèbres featuring incoherency, contrast, for instance, the case law on national security grounds: ECtHR, The Sunday Times v. UK (No. 2) (Spycatcher case) (Appl. No. 13166/87), Judgment (Plenary), 26 November 1991, Series A, Vol. 217, and the case law relating to public morality grounds: ECtHR, Wingrove v. UK (Appl. No. 17419/90), Judgment (Chamber), 25 November 1996, Reports 1996-V.

79J.A. Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’, Columbia Journal of European Law 11

the normative guidance of substantive rights provisions of the ECHR80 and fostering normative ambiguity. Lord Lester forcefully argues that in the context of article 10 ECHR, ‘its [the Court’s] reasoning has always suffered from a use of ad hoc balancing under the margin of appreciation doctrine which lacks legal certainty and adherence to clear principles’.81 The ambiguity in human rights standards that are cumulatively brought about by the case law might negatively impact upon the dignity of individual persons in concrete cases by failing to respect their autonomy.82 As a corollary of such normative erosion, there is a risk that the overall effectiveness in safeguarding the Convention rights might be undermined. Further, the standards of the Convention rights might be differently applied in the seemingly similar cases,83 leading to inconsistent standards of human rights.84

4.3 Non-accountability and corrosive effect on the rule of law

Second, such a proneness to diluting normative expectation might in turn handicap the development of judge-made law and have a potentially damaging implication for the very legitimacy of the Court.85 Excessive reliance on the judicial self-restraint rationale risks fostering a habit of non-accountability86 and abdicating the supervisory role of the

(2004–5) 113–50 (hereinafter Brauch, ‘The Margin of Appreciation’), at 148. Compare K. Kress, ‘Legal Indeterminacy’, California Law Review 77 (1989) 283–337, at 285–95.

80Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 937.

81Lord Lester of Herne Hill, ‘The European Court of Human Rights after 50 Years’,

European Human Rights Law Review 4 (2009) 461–78, at 474.

82See J. Raz, The Authority of Law (Oxford: Clarendon Press, 1979), at 222.

83E. Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’, New York University Journal of International Law and Politics 31 (1998–9) 843–54 (hereinafter Benvenisti, ‘Margin of Appreciation’), at 844. See also F. Ní Aoláin, ‘The Emergence of Diversity: Differences in Human Rights Jurisprudence’, Fordham International Law Journal 19 (1995–6) 101–42 (hereinafter Ní Aoláin, ‘The Emergence of Diversity’), at 114, 119.

84Benvenisti, ‘Margin of Appreciation’; and D. McGoldrick, ‘Multiculturalism and its Discontents’, Human Rights Law Review 5 (2005) 27–56 (hereinafter McGoldrick, ‘Multiculturalism’).

85Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 922–3. See also Spielmann, ‘Allowing the Right Margin’, at 28.

86Compare the discussions on the Framework Convention for the Protection of National Minorities: C.F. Furtado, Jr. ‘Guess Who’s Coming to Dinner? Protection for National Minorities in Eastern and Central Europe under the Council of Europe’, Columbia Human Rights Law Review 34 (2003) 333–412, at 364–5.

Court.87 In essence, the weakening normative guidance might yield a corrosive effect on the overarching principle of the rule of law.88

4.4 Subjective and relativist standards and risk of fragmentation

Third, as threadbare as it may be, the application of the doctrine might be seen as furtively introducing subjective and relativist standards into treaty provisions of human rights treaties, formal sources of international law. In other words, a margin of appreciation might be deployed as a conceptual ‘Trojan horse’ for the purpose of fragmenting the unity and harmony of the established Convention standards. Such a potential risk would run counter to the universal claim, ‘universalising project’, of human rights.89 Precisely for this reason, in Z v. Finland, Judge De Meyer, in his Partly Dissenting Opinion, noted that ‘I believe that it is high time for the court to banish that concept [of margin of appreciation] from its reasoning. It has already delayed too long in abandoning this hackneyed phrase and recanting the relativism it implies.’90 Such a tendency would risk generating judicial double standard,91 unfairness92 or bias.93 The Court might err on the side of becoming altogether obtuse over such serious consequences.

4.5 Strategies to address the criticisms

These strands of criticisms are levelled mainly at the doctrine’s modality of application. In the present writer’s view, the bulk of such criticisms can be addressed by a tripartite strategy: (i) clarifying the normative nature of

87Brauch argues that ‘The empty phrases concerning the states’ margin of appreciation – repeated in the court’s judgments for too long already – are unnecessary circumlocutions, serving only to indicate abstrusely that the States may do anything the Court does not consider incompatible with human rights’: Brauch, ‘The Margin of Appreciation’, at 148.

88For such a strand of criticism, see, for instance, ibid., at 125. See also P. Macklem, ‘Militant Democracy, Legal Pluralism, and the Paradox of Self-Determination’, International Journal of Constitutional Law 4 (2006) 488–516.

89Benvenisti, ‘Margin of Appreciation’, at 843–4; and McGoldrick, ‘Multiculturalism’, at 55.

90ECtHR, Z v. Finland (Appl. No. 22009/93), Judgment (Chamber), 25 February 1997, Reports 1997-I, Partly Dissenting Opinion of Judge De Meyer, Section III.

91Benvenisti, ‘Margin of Appreciation’, at 844. See also Ní Aoláin, ‘The Emergence of Diversity’, at 114, 119 (suggesting that states that adhere to democratic principles can be subject to less exacting scrutiny).

92Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 912.

93Benvenisti, ‘Margin of Appreciation’, at 850; and Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 923–4.

principles as ‘optimization requirements’ that ‘can be satisfied to varying degrees’. The amenable nature of a principle suggests its capacity of greater resilience. Hence, it can survive intact, even in circumstances where it cannot prevailingly provide a basis for a precise normative outcome.98

The malleable nature of principles is all the more ascertainable when they are compared to rules. Building his theoretical framework on the assumption that constitutional rights are hybrids of rules and principles,99 Alexy argues that in contrast to rules that are considered to entail ‘definitive commands’, principles are ‘reasons for concrete ought-judgment’100 that represent ‘norms requiring that something be realized to the greatest extent possible, given the factual and legal possibilities at hand’.101 Similarly, for Ronald Dworkin, in contrast to a ‘rule’ that is inclined to stipulate a discrete resolution because of its specificity and concrete character, a principle ‘states a reason that argues in one direction, but does not necessitate a particular decision’. According to Dworkin, a principle is susceptible to evaluations in terms of its relative importance. This marks a contrast to a rule that operates in an all-or-nothing manner, so that the conflict of rules is resolved by allowing one to supersede the other.102 Further, a principle is deemed more receptive than a rule to moral reasoning in the inclusive positivist sense.103 Put differently, it is generally considered that the proclivity to be backed up by some substantive rationales is more potent for principles than with respect to rules.

While susceptible of flexible interpretation, principles are capable of foreseeing normative outcomes with relative consistency, the capacity

98This can be contrasted to rules, which may be changed, or fall into desuetude, when drastically failing to dictate their normative direction and outcomes, such as in the case where a contrary result continues to be yielded: Dworkin, ibid., at 35–6.

99See K. Möller, ‘Balancing and the Structure of Constitutional Rights’, International Journal of Constitutional Law 5:3 (2007) 453–68, at 456.

100Alexy, ‘A Theory of Constitutional Rights’, at 60. Kumm usefully summarises Alexy’s characterisation of principles as an ‘ideal-ought’: Kumm, ‘Constitutional Rights as Principles’, at 577.

101R. Alexy, ‘The Construction of Constitutional Rights’, Law and Ethics of Human Rights 4 (2010) 20–32, at 21. See also Alexy, ‘A Theory of Constitutional Rights’, at 47–8 and 57.

102Dworkin, Taking Rights Seriously, at 24, and 26–7.

103J. Waldron, ‘Judges as Moral Reasoners’, International Journal of Constitutional Law 7

(2009) 2–24 (hereinafter Waldron, ‘Judges as Moral Reasoners’), at 10. See also E. Sherwin, ‘Rule-Oriented Realism’, Michigan Law Review 103 (2005) 1578–94, at 1591 (contending that ‘the rule-sensitive particularism [which highlights evaluating an ideal outcome according to available reasons] does not treat rules as constraints in judicial reasoning; rather, it calls on judges to give appropriate weight to the value of rules in the process of unconstrained moral reasoning’; emphasis in original).

that tends to be lacking in respect of the margin of appreciation. For instance, in some instances, the Court has invoked the notion ‘margin of appreciation’ only as a rhetorical tool. In other words, the Court’s express reference to this notion has had little bearing on the actual course of its review.104 In those cases, the allusion to this notion gives a façade or pretence of ‘assurance’ to national authorities against a possible criticism of what they may perceive as unfounded judicial activism, while in reality the Court does not hesitate to engage itself in stringent scrutiny. The notion of a margin of appreciation used as a rhetorical tool is diametrically opposite to the idea of illocutionary function that the language of legal terms is expected to undertake.105 These considerations cast a certain doubt on this notion’s eligibility for a fully-fledged ‘principle’.

5.2 The margin of appreciation as a ‘principle of secondary order’

Greer furnishes a distinct theoretical framework within which he classi- fies the margin of appreciation, together with proportionality and

104 See, inter alia, ECtHR, A v. Norway (Appl. No. 28070/06), Judgment (First Section), 9 April 2009, not reported, paras. 66 and 74 (the right to reputation in respect of defamation under art. 8); ECtHR, Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria (Appl. Nos. 412/03 and 35677/04), Judgment (Fifth Section), 22 January 2009, not reported, paras. 119, 131 and 159 (finding a disproportionate interference with the leadership disputes in the Bulgarian Orthodox Church, notwithstanding ‘a wide margin of appreciation’ left to the national authorities states in regulating its relations with religious communities); ECtHR, SH and Others v. Austria (Appl. No. 57813/00), Judgment (First Section), 1 April 2010, paras. 69, 89–90, 92–4 (dispute over the ban on heterologous artificial procreation techniques for in vitro fertilisation under the Austrian Artificial Procreation Act, examined under art. 14 taken together with art. 8; overturned by the Grand Chamber’s judgment of 3 November 2011); and ECtHR, Hutten-Czapska v. Poland (Appl. No. 35014/97), Judgment (Grand Chamber), 19 June 2006, Reports 2006-VIII, paras. 165, 166, 223 and 224 (rebuking the laws imposing tenancy agreements and setting an inadequate amount of rent as a violation of art. 1 of Protocol No. 1, despite a broad margin of appreciation that the domestic authorities enjoyed in implementing social and economic policies in the post-community era). Compare Times Newspapers Ltd (Nos. 1 and 2) v. UK (Appl. Nos. 3002 and 23676/ 03), Judgment (Fourth Section), 10 March 2009, Reports 2009, paras. 43, 45, 46–9 (the Court undertaking a relatively meticulous examination of the case in question, albeit finding no violation of art. 10 and recognising the national margin of appreciation in setting limitation periods for libel actions).

105Wittgenstein considers uses of words as moves in language games. According to him, words are not labels that can be pinned down to concrete objects, and their meaning can be determined by rules for their use: T.A.O. Endicott, ‘Law and Language’, in Coleman and Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law 935–68, at 946–7 and 949.

non-discrimination, as forming the body of ‘secondary principles’ of the ECHR. According to him, such second-order principles supplement the three ‘primary constitutional principles’: the ‘rights’ principle; the ‘democracy’ principle; and ‘the priority-to-rights’ principle.106 In Greer’s view, the ‘rights principle’ requires that in democracy, the Convention rights ought to be safeguarded by national courts and the ECtHR through the medium of law. The ‘democracy principle’ then demands that collective ends be sought after by democratically accountable national non-judicial organs. The ‘priority-to-rights principle’ (or ‘priority principle’) in turn functions as the mediator between these two principles. It requires that the Convention rights ‘take procedural and evidential, but not conclusive, priority over the democratic pursuit of the public interest, according to the terms of given Convention provisions’.107 This principle will impose an onerous burden of proof on respondent states to rationalise their meddling with individual persons’ rights.108 In a more nuanced manner, Kumm argues that ‘The priority of rights can only mean that individual rights should not be treated lightly but should be given the weight they deserve within a general conception of political justice grounded in the basic ideas of dignity and autonomy.’109 According to Greer, the ‘legality’ principle (or the ‘rule of law’ principle), while worthy of being categorised as the fourth primary constitutional principle, is fully integral to each of the three principles.110 Greer’s panoply of those ‘primary principles’ in his theoretical framework is instrumental in systematically accounting for the emerging, ‘constitutional’ pillars of the ECHR. In his structure, when classified as a ‘secondary principle’, a margin of appreciation is an ‘inferred’ principle of interpretation111 that is ancillary to the ‘primary principles’ that govern the entire edifice of the ECHR. For the purpose of shedding more light on normative features of a margin of appreciation as a ‘secondary principle’, this chapter will turn to another strand of explanations.

110Greer, ‘What’s Wrong with the ECHR?’, at 697.

111It can be contended that though there is no explicit basis for this doctrine, its genesis owes much to the way in which the Convention rights are structured, in particular, in respect of the limitation and derogation clauses: Brauch, ‘The Margin of Appreciation’, at 116. Note that in the Lüth case, the German Federal Constitutional Court (Bundesverfassungsgericht, or BVerfG) found that the principle of proportionality can be deduced from the very nature of the constitutional rights themselves: Lüth, Bundesverfassungsgericht (BVerfG), 15 January 1958, 7 Entscheidung des Bundesverfassungsgerichts (BVerfGE) 198 (concerning the freedom of opinion).

is a ‘secondary’ or ‘auxiliary’ principle that is short of a ‘fully-fledged’ principle. Still, it will be argued that a margin of appreciation can most fittingly be characterised as a ‘policy standard’ that emanates from the conscious decisional choice of the Court. Distinguishing it from a ‘principle’ in a narrow sense,112 Dworkin defines a ‘policy’ or a ‘policy standard’ as a ‘kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’.113 A margin of appreciation can be deemed as an inevitable spin-off of the notion of balancing inherent in the Convention (between two clashing Convention rights, or between a Convention right and a public purpose). An adjunct nature of the margin of appreciation can also be corroborated by the view that this is an expression of the principle of good faith within the meaning of article 31 of the Vienna Convention on the Law of Treaties, whereby a member state is entrusted with addressing ‘hard cases’ in a municipal context.114

As compared with a principle, a policy standard is equipped with two salient traits that can fit the description of a margin of appreciation in respect of its operational modality and normative feature. First, a ‘policy standard’ (or simply, a ‘policy’) entails normative advantages of a principle such as flexibility and resilience. Still, a policy standard is even more malleable than a principle.115 Second, as compared with a principle, a policy standard does not require itself to be an outcome of the Court’s deliberations on overarching moral rationales. Instead, it is not excluded that a policy standard may be predicated solely on the Court’s utilitarian calculation of judicial economy or other considerations of expediency.116

112Admittedly, Dworkin occasionally employs the term ‘principles’ generically to refer to all those normative standards other than rules. Yet, in the main, he segregates a ‘policy’ from a principle: Dworkin, Taking Rights Seriously, at 22.

113Ibid.

114Crema describes the concept of margin of appreciation as an expression of the principle of good faith within the meaning of art. 31 of the Vienna Convention on the Law of Treaties, granting to a state the room to address hard cases: L. Crema, ‘Disappearance and New Sightings of Restrictive Interpretation(s)’, European Journal of International Law 21 (2010) 681–700, at 699.

115Dworkin at times employs the terms ‘principles’ to refer to any other extra-legal standards that operate in adjudication: Dworkin, Taking Rights Seriously, at 22.

116Indeed, it can be submitted that this ought to be the interpretive ethic of all monitoring bodies of human rights treaties: see G. Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’, European Journal of International Law 21 (2010) 509–41,