Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

In other words, a policy standard is not bound as strictly as a principle ought to be, by the idea that the judicial reasoning marshalled in human rights decision-making should articulate a coherent set of arguments on underlying political morality.117

6. The normative relationship between a margin of appreciation, European consensus and evolutive interpretation

As is well known, one of the rational premises that the Court has consistently invoked to vindicate the application of a margin of appreciation is the absence of ‘European consensus’.118 The complexity in ascertaining a particular matter closely related to a social policy of each national society may be compounded by the evolution of scientific progress and of corresponding social opinions. The lack of European consensus in regulatory approaches, due to different cultural interpretation

at 520 (arguing that ‘The Court’s interpretive ethic became one of looking at the substance of the human right at issue and the moral value it serves in a democratic society, rather than engaging in linguistic exercises about the meaning of words or in empirical searches about the intentions of drafters’).

117Ronald Dworkin characterises the judicial review undertaken by the US Supreme Court as being of the kind that ensures that ‘the most fundamental issues of political morality’ will be examined as ‘issues of principles and not political power alone’: R. Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), at 70.

118See, inter alia, ECtHR, X, Y and Z v. UK (Appl. No. 21830/93), Judgment (Grand Chamber), 22 April 1997, Reports 1997-II (the right of a post-operational transsexual to be registered as the parent of a child conceived by artificial insemination); ECtHR, Stjerna v. Finland (Appl. No. 18131/91), Judgment (Chamber), 25 November 1994, Series A, Vol. 299-B (condition on change of surname); ECtHR, Otto-Preminger-Institut v. Austria (Appl. No. 13470/87), Judgment (Chamber), 20 September 1994, Series A, Vol. 295-A; ECtHR, Wingrove v. UK (Appl. No. 17419/90), Judgment (Chamber), 25 November 1996, Reports 1996-V (relative significance of freedom of religion as compared with freedom of expression); ECtHR, Odièvre v. France (Appl. No. 42326/ 98), Judgment (Grand Chamber), 13 February 2003, Reports 2003-III, see, in particular, the French government’s pleading at para. 37, and para. 15 of the Joint Dissenting Opinion of Judges Wildhaber, Sir Nicolas Bratza, Bonello, Loucaides, Cabral Barreto, Tulkens and Pellonpää. Still, see the ground-breaking decision in Christine Goodwin v. UK, where the Court found sufficient European consensus to depart from its earlier conservative stance to recognise the rights of transsexuals under art. 8: ECtHR, Christine Goodwin v. UK (Appl. No. 28957/95), Judgment (Grand Chamber), 11 July 2002, Reports 2002-VI. Though in principle not entailing a margin of appreciation because the case involved alleged violation of art. 3 (in relation to the minimum age of criminal responsibility), the absence of such a consensus was used as a rationale for rejecting the claim: ECtHR, T v. United Kingdom (Appl. No. 24724/94), Judgment (Grand Chamber), 16 December 1999, not reported, paras. 71–2.

and understanding of the matter, rationalises the Court’s deference and the non-substitution principle (namely, the Court’s decision not to substitute its view for a national understanding). There is no European consensus on such issues as the impact of human embryo research on the

beginning of human life,119 and IVF treatment, including ova donation for IVF120 and rights of a mother to bear an offspring once her eggs are

fertilised through IVF treatment.121 Even so, one ought to add a caveat that in the case of ostensibly excessive measures affecting the Convention right of fundamental importance, the Court may feel uninhibited to jettison the deferential approach based on the lack of European ‘consensus’ and to embark on an assertive policy of review.122

It ought to be highlighted that the Court identifies such European consensus in its own ‘objectivised’ manner. The concept ‘European consensus’ is different from mere numerical majority of the member states. Indeed, this is related to a more substantive idea.123 For instance, in some cases the Court’s identification of the evolving European consensus, on closer inspection, is altogether independent of the empirical data. Such consensus may remain flimsy,124 or it may have yet to be rigorously tested.125

119ECtHR, Vo v. France (Appl. No. 53924/00), Judgment (Grand Chamber), 8 July 2004, Reports 2004-VIII, paras. 78, 82 and 85. Compare ECommHR, H v. Norway (Appl. No. 17004/90), Decision (Commission), 19 May 1992; and ECtHR, Boso v. Italy (Appl. No. 50490/99), Decision (First Section), 5 September 2002, Reports 2002-VII.

120ECtHR, SH and Others v. Austria, paras. 97 and 106.

121ECtHR, Evans v. UK (Appl. No. 6339/05), Judgment (Grand Chamber) 10 April 2007, Reports 2007-I, paras. 77–8, 80–2, 85, 90 and 92.

122In this light, see, for instance, ECtHR, Hirst v. UK (No. 2) (Appl. No. 74025/01), Judgment (Grand Chamber), 6 October 2005, Reports 2005-IX, para. 81 (the Court holding that ‘even if no common European approach to the problem [of the exclusion of convicted prisoners from voting in national and local elections] can be discerned, this cannot in itself be determinative of the issue’).

123See G. Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’, European Journal of International Law 15 (2004) 279–305; and Letsas, Chapter 4, this volume.

124Such a pattern may risk crossing the borderline between interpretation and invention of a rule and becoming arbitrary: R. Dworkin, Law’s Empire (Oxford: Hart Publishing, 1986) (hereinafter Dworkin, Law’s Empire), at 66.

125This has been seen in cases of discrimination against illegitimate children. See, for instance, Marckx v. Belgium, in which the Court noted that the existence of the European treaties aimed at removing discrimination against ‘illegitimate’ children was ‘a clear measure of common ground’, despite the small number of states parties to those treaties: ECtHR, Marckx v. Belgium (Appl. No. 6833/74), Judgment (Plenary), 13 June 1979, Series A, Vol. 31, para. 41.

In contrast to the propensity for judicial self-restraint that appears in the absence of such European consensus, once such ‘consensus’ is ascertained, this can warrant a teleological step to deploy evolutive interpretation assertively in favour of uniform (namely, harmonised) and autonomous European standards. This line of reasoning is consonant with Mahoney’s suggestion that the margin of appreciation and evolutive interpretation operate on the flip sides of the same coin.126 When applying the margin of appreciation, the Court may be signalling a message that it is awaiting the formation of a ‘European consensus’.127 This may be aptly described as a ‘deferral approach’. Invoking the presence (or lack) of such European consensus as a benchmark for adjusting the standard of review is a singular hallmark of the Court.

So far, such a teleological construction has been applied to the benefit of rights of individual persons, including those who are members of vulnerable, and historically and socially discriminated-against (minority) groups. As is well known, this judicial strategy, which is predicated on the interplay between a narrow margin and stringent scrutiny, has been instrumental in challenging residual prejudice in relation to issues of children born out of wedlock,128 homosexuals129 and transsexuals.130

126P. Mahoney, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’, Human Rights Law Journal 11 (1990) 57–80 (hereinafter Mahoney, ‘Judicial Activism’).

127The author expresses special gratitude to George Letsas for this suggestion.

128See, for instance, ECtHR, Marckx v. Belgium, para. 41.

129See, inter alia, ECtHR, Dudgeon v. UK (Appl. No. 7525/76), Judgment (Plenary), 22 October 1981, Series A, Vol. 45, para. 60; ECtHR, Norris v. Ireland (Appl. No. 10581/83), Judgment (Plenary), 26 October 1988, Series A, Vol. 142; ECtHR, Modinos v. Cyprus (Appl. No. 15070/ 89), Judgment (Chamber), 22 April 1993, Series A, Vol. 259; ECtHR, Lustig-Prean and Beckett v. UK (Appl. Nos. 31417 and 32377/96), Judgment (Third Section), 27 September 1999, not reported, para. 90; ECtHR, Smith and Grady v. UK (Appl. Nos. 33985 and 33986/ 96), Judgment (Third Section), 27 September 1999, Reports 1999-VI, para. 97; ECtHR, ADT v. UK (Appl. No. 35765/97), Judgment (Third Section), 31 July 2000, Reports 2000-IX, para. 38 (conviction of gross indecency with respect to private video-recording of non-violent homosexual activities); ECtHR, Kozak v. Poland (Appl. No. 13102/02), Judgment (Fourth Section), 9 February 2010, not reported, paras. 92 and 98 (denial of the right to succeed to the tenancy of a flat in which the applicant lived with his late homosexual partner); and ECtHR, EB v. France (Appl. No. 43546/02), Judgment (Grand Chamber), 22 January 2008, not reported paras. 91–2 (refusal to grant a single homosexual woman an authorisation to adopt a child, which was held to be discriminatory based on her sexual orientation); contra: ECtHR, Schalk and Kopf v. Austria (Appl. No. 30141/04), Judgment (First Section), 24 June 2010, Reports 2010 (denial of the right of same-sex marriage under art. 12).

130Christine Goodwin v. UK, paras. 74–5, 85; ECtHR, I v. UK (Appl. No. 25680/94), Judgment (Grand Chamber), 11 July 2002, not reported paras. 54–5 and 65; ECtHR,

7.The conceptual linkage between a margin of appreciation

and the principle of subsidiarity

7.1 Overview

In the light of the foregoing criticisms, this section proposes that one main locus of analysing the notion of margin of appreciation should be situated in a ‘constitutional’ dimension manifested by the principle of subsidiarity.131 At the root of the substantive discourse on international human rights law, the principle of subsidiarity embodies disparate and axiomatic ideas of a constitutional nature. This principle also functions as a crucial analytical vehicle for ascertaining divergent features of international human rights law. For the purpose of our analysis, the institutional dimension of this principle (allocation of competences between national and international organs) can elucidate: (i) the nature and extent of ‘devolution of interpretive authority’ that can be given to the national authorities (the question of interpretive discretion, or a margin of appreciation); and (ii) the question of the scope of judicial review along a sliding scale.132 The special relevance of the principle of subsidiarity in the discourse on a margin of appreciation lies in its mediating role in finding an appropriate equilibrium between national constitutional

Van Kück v. Germany (Appl. No. 35968/97), Judgment (Third Section), 12 June 2003, Reports 2003-VII, paras. 52, 55–6, 81–2 (examining, under arts. 65 and 8, the onus of proving the need of gender reassignment operation in national court proceedings as regards claims for reimbursement of medical expenses against a private health insurance company); ECtHR, Grant v. UK (Appl. No. 32570/03), Judgment (Fourth Section), 23 May 2006, Reports 2006-VII, paras. 41–4;

131For the same view, see E. Brems, Human Rights: Universality and Diversity (The Hague: Kluwer, 2001), at 422; and Carozza, ‘Subsidiarity’, at 69. For the assessment of the principle of subsidiarity in general, see ibid.; K. Endo, ‘The Principle of Subsidiarity: From Johannes Althusius to Jacques Delors’, Hokkaido Law Review 44:6 (1994) 553–652. For its analysis in EU law, see G.A. Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, Columbia Law Review 94 (1994) 332; L.F.M. Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union’, Common Market Law Review 35 (1998) 629; and R. Schütze, ‘Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism?’, Cambridge Law Journal 68 (2009) 525. Assessment of this principle in the ECHR context is limited, but see: P. Mahoney, ‘Universality versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments’, European Human Rights Law Review 4 (1997) 364; H. Petzold, ‘The Convention and the Principle of Subsidiarity’, in Macdonald et al. (eds.), The European System for the Protection of Human Rights, 41–62 (hereinafter Petzold, ‘The Convention’).

132Carozza, ‘Subsidiarity’, at 55–6, and 62.

protection systems on one hand, and regional or universal systems on the other. National constitutions, which are intrinsic national symbols of member states, synthesise three main fundamental ‘values’ of sovereignty, local culture and political legitimacy. They are structurally polarised against a pan-European and cosmopolitan clamour for unitary standard-setting.133 Determining the right balance in a specific circumstance depends on evaluating what is seen as the necessary degree of international cooperation and intervention in matters that occur within national sovereign jurisdictions.134

The notion of subsidiarity can be considered inherent in any decisionmaking process of international human rights law,135 or international law in general. Akin to the margin of appreciation, the principle of subsidiarity should be considered to encompass a more substantive function connected to the interwoven ideas about individuals, society, state and international organisation.136 The bounds of our discourse ought not to be reduced by approximating this principle to attributes of national sovereignty.137 The notion of sovereignty, albeit pertinent, is unable to resolve what Carozza terms an ‘anxious dialectic between universal and particular’, that is, the tension between the demand for pan-European (or universal) standards of human rights law that transcend particular values of member states on one hand, and the yearning for autonomy and self-governance on the other.138 In contrast, the principle of subsidiarity can embrace both the universalising aspirations of human rights and the relative autonomy of national and local communities.139 Carozza argues that by assuming such a paradoxical function, ‘subsidiarity seeks to overcome the bind of modernism that Koskenniemi has laid out – the problem of basing international order on some substantive conception of the good without succumbing to the temptation of authoritarianism’.140

136Ibid., at 42. Contending that the rationales of the notion of subsidiarity that are rooted only in technical and institutional functions may impoverish our debates. Compare the discussion under EU law: ibid., at 52.

137K. Endo, ‘Subsidiarity and its Enemies: To What Extent is Sovereignty Contested in the Mixed Commonwealth of Europe?’, EUI Working Papers, RSC No. 2001/24 at 36,

available at www.eui.eu/RSCAS/WP-Texts/01_24.pdf (last accessed 30 January 2012). 138 Carozza, ‘Subsidiarity’, at 64 and 67. 139 Ibid., at 68.

140Ibid. See also his other assertion that: ‘Its [subsidiarity’s] paradoxical quality helps keep alive the unceasing tension between the competing ideals of belonging to a particular and affirming a universal unity and helps avoid the collapse of international law into either the romanticism of the nation-state or the ideological abstraction of “pure” internationalism’: ibid.

7.2 Institutional/structural dimension of subsidiarity

Article 12 of Protocol No. 14, which has amended article 35(3)(b) ECHR, can be considered to incorporate the structural sense of subsidiarity in the Court’s admissibility scrutiny.141 Article 12 reads:

Paragraph 3 of Article 35 of the Convention shall be amended to read as follows:

‘3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

a.the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application; or

b.the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.’

The more the ECHR is domestically implemented, the greater the number of cases dealing with the clash of two competing Convention rights, where the highest instance of the national courts has had to engage itself in reasoned judgment with due application of the criteria developed by the Court. In such circumstances, apart from the reflection of judicial economy, the Court may see it as advisable to refrain from heavily criticising decisions reached by the highest instance of national courts.142

In A and Others v. UK, the ECtHR held that: ‘The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court.’143 The Court added that this doctrine ‘cannot have the same application to the relations between the organs of State at the domestic level’. That the margin of appreciation doctrine is designed to apply to the vertical relationship

141Spielmann, ‘Allowing the Right Margin’, at 26–7.

142This pattern of giving a margin of appreciation to national courts is recognised by Judge Dean Spielmann: ibid., at 23. Indeed, the recent case law of the Court seems to endorse this approach: Axel Springer AG v. Germany, para. 88; and Von Hannover v. Germany (No. 2), para. 107. See also Palomo Sánchez and Others v. Spain, para. 57; and MGN Limited v. The United Kingdom, paras. 150 and 155. See also Baroness Hale, ‘Argentoratum Locutum: Is the Strasbourg or the Supreme Court Supreme?’, Human Rights Law Review 12:1 (2012) 65–78, at 77.

143A and Others v. UK (Appl. No. 3455/05), Judgment (Grand Chamber), 19 February 2009, Reports 2009, para. 184.

between the ECtHR and national authorities, and not to the horizontal relationship between two or more national organs, has been recognised explicitly by the UK courts.144 What Letsas calls the ‘structural concept of the margin of appreciation’145 is closely intertwined with the institutional/ structural dimension of subsidiarity,146 which underpins the rationale of distributive justice. This structural dimension of a margin of appreciation is predicated on the vertical distribution of powers between the supranational judiciary and national constitutional mechanisms.147

The institutional dimension of the principle of subsidiarity can also be corroborated by the technical considerations of judicial economy.148

Against the backdrop of an exponential number of applications and a chronic backlog of cases,149 the Court is bound, based as it is on the

consideration of judicial economy, to allocate its limited judicial resources equitably. In the light of a ‘resource gap’150 in collecting and analysing evidence or other empirical data, such a utilitarian rationale bolsters the Strasbourg judges’ decision to endorse the national authorities’ fact-finding and to ascertain a state of emergency.151

144See, for instance, In re G (Adoption: Unmarried Couple) [2009] 1 AC 173, at 187–8, per Lord Hoffmann. See also D. Pannick, ‘Principles of Interpretation of Convention Rights under the Human Rights Act and the Discretionary Area of Judgment’, Public Law (1998) 545, 548; R. Singh, ‘Is There a Role for the “Margin of Appreciation” in National Law after the Human Rights Act?’, European Human Rights Law Review (1999) 15; and Rivers, ‘Proportionality’, at 175.

145The gist of this concept is that ‘the Court’s power to review decisions taken by domestic authorities should be more limited than the powers of a national constitutional court or other national bodies that monitor or review compliance with an entrenched bill of rights’: Letsas, ‘Two Concepts of the Margin of Appreciation’, at 721.

146J.A. Sweeney, ‘Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era’, International and Comparative Law Quarterly

54 (2005) 459–74 (hereinafter Sweeney, ‘Margins of Appreciation’), at 474.

147Petzold, ‘The Convention’, at 49. See also A and Others v. UK, para. 184 (holding that: ‘The doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court. It cannot have the same application to the relations between the organs of State at the domestic level’).

148Arai-Takahashi, ‘The Margin of Appreciation’, at 239–41.

149Greer, ‘What is Wrong with the ECHR?’, at 687–91; and H. Keller, A. Fischer and D. Kühne, ‘Debating the Future of the European Court of Human Rights after the Interlaken Conference: Two Innovative Proposals’, European Journal of International Law 21 (2010) 1025–48.

150Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 918.

151ECtHR, Ireland v. UK (Appl. No. 5310/71), Judgment (Plenary), 28 January 1978, Series A, Vol. 25, para. 214 (asserting that the Court’s evaluation must be made not with the advantage of hindsight, but from the standpoint of the conditions prevailing at the time of emergency). Shany argues that the ex post facto nature of attributing state

8. The substantive dimension of a margin of appreciation

8.1 Overview

Having explained the structural dimension of a margin of appreciation within the framework of the principle of subsidiarity, the analysis now turns to the substantive dimension of a margin of appreciation doctrine. The present section argues that such a substantive dimension of this doctrine can be considered to highlight two interconnected ideas: (i) deference to, and, recognition of, national legitimacy, when the Court itself is patently aware of the lack of its democratic accountability;152 and (ii) respect for an expression of diverse cultural values in Europe. Some authors consider that these two ideas are also encompassed within the notion of subsidiarity by introducing the ‘substantive’ dimension of subsidiarity.153

8.2Deference to national legitimacy

The rationale underpinning the margin of appreciation based on legitimacy has been recognised by judges of the ECtHR themselves. In their Dissenting Opinion in Karatas v. Turkey, Judges Wildhaber, Pastor Ridruejo, Costa and Baka observed that ‘the democratic legitimacy of measures taken by democratically elected governments commands a degree of judicial self-restraint’.154 Along this line, Cohen-Eliya and Porat portray the function of the margin of appreciation positively, at least in its formative years, as reinforcing the legitimacy of the Court.155

By applying the margin of appreciation, the Court is endorsing ‘an open and fair process of public deliberation’ at a national level.156

responsibility for violations of vague, primary norms might be perceived as a manifestation of ‘dubious legitimacy’: Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 918.

152For a consistent critique of the thesis that judges are better suited than the democratically elected legislature to grapple with disputes on fundamental rights through the mechanism of their judicial review, see Waldron, ‘Judges as Moral Reasoners’, at 24; and J. Waldron, ‘The Core of the Case against Judicial Review’. Yale Law Journal 115 (2006) 1346.

153Carozza refers to the demarcation of a ‘conceptual territory in which unity and plurality interact, pull at one another, and seek reconciliation’: Carozza, ‘Subsidiarity’, at 52.

154ECtHR, Karatas v. Turkey (Appl. No. 23168/94), Judgment (Grand Chamber), 8 July 1999, Reports 1999-IV, Joint Partly Dissenting Opinion of Judges Wildhaber, Pastor Ridruejo, Costa and Baka.

155Cohen-Eliya and Porat, ‘Proportionality’, at 468.

156Wheatley, ‘Minorities’, at 790.

Here, the notion of a margin of appreciation serves as a solvent against ‘unfounded’ judicial activism of international adjudications. It signifies the Court’s willingness to hold joint ‘ownership’ of the juridical tasks with the national authorities,157 incrementally facilitating ‘normative internalisation’ of the ECHR standards by domestic courts.158

The legitimacy-based rationales are of special pertinence in assessing policy-affecting questions, and the extent to which positive obligations that can be inferred from a specific right ought to be implemented in a particular national society. The principle of subsidiarity underscores the Court’s deference to general policy choices of national governments in areas of socio-economic matters159 and fiscal policy160 under article 1 of the First Protocol, and of environmental policies under article 8.161 Further, the notion of subsidiarity can be considered to impact on the Court’s decision in more specific policy-related questions, such as restrictions on a prisoner’s rights under the Convention, including their right

157Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 922.

158H.H. Koh, ‘Bringing International Law Home’, Houston Law Review 35 (1998) 623–81, at 648–50. Incorporating a national adjudicative technique of interpretive discretion in turn helps bolster the Court’s own legitimacy among the member states as well: Carozza, ‘Subsidiarity’, at 74.

159See, inter alia, ECtHR, Pine Valley Developments Ltd and Others v. Ireland (Appl. No. 12742/87), Judgment (Chamber), 29 November 1991, Series A, Vol. 222, para. 59; ECtHR, Sporrong and Lönnroth v. Sweden (Appl. Nos. 7151 and 7152/75), Judgment (Plenary), 23 September 1982, Series A, Vol. 52, para. 69. Compare ECtHR, HuttenCzapska v. Poland (Appl. No. 35014/97), Judgment (Grand Chamber), 19 June 2006, Reports 2006-VIII, paras. 165, 166, 223 and 224 (a stringent scrutiny, despite recognising that as a general rule, a broad margin of appreciation is accorded to the national authorities in implementing social and economic policies).

160See, for example, ECtHR, Burden v. UK (Appl. No. 13378/05), Judgment (Grand Chamber), 29 April 2008, Reports 2008, paras. 59–60 (inheritance tax relating to unmarried and cohabiting, elderly sisters).

161In Tãtar v. Romania, the Court held that:

La Cour esitime n’avoir pas qualité pour substituer son propre point de vue à celui des autorités locales quant à la meilleure politique à adopter en matière environnementale et industrielle: il y va de l’ample marge d’appréciation que sa jurisprudence reconnait aux Etats dans des domaines sociaux et techniques difficiles … En l’espèce, les mesures preventives requises étaient celles qui rentraient dans le cadre des pouvoirs conférés aux autorité et qui pouvaient raisonnablement passer pour aptes à pallier les risques portés à leur connaissance.

ECtHR, Tãtar v. Romania (Appl. No. 67021/01), Judgment (Third Section), 27 January 2009, Reports 2009, para. 108.

to vote under article 3 of the First Protocol,162 and their rights to private and family life under article 8.163

8.3Cases of ‘tyranny of the majority’ and denial of the

margin of appreciation

However, an appeal to deference to local legitimacy loses persuasive force when the constitutional edifice for national legitimacy is disturbingly shaky and morally questionable. Not merely the authoritarian regimes, but also states with democratically elected governments, may flout rights of a member of a minority (the case of a tyranny of the majority).164

As Europe’s historical experience of having democratically elected extreme right-wing leaders demonstrates, there is no assurance that the majority’s prevailing view is always morally defensible, and/or ‘progressive’ in the sense of enhanced effectiveness in guaranteeing individual persons’ rights.165 Indeed, the assumption that the doctrine’s rational basis is rooted principally in deference to the legitimacy of democratic governments may be usurped in a diametrically opposite direction, namely, to the detriment of minority rights protection. There is a grave danger that the democratic majority may opt to deprive members belonging to any minority of their fundamental rights. Clearly, such an outcome ‘would be illegitimate because [it is] contrary to the foundational values of democracy itself ’.166 Political or social minority members would be divested of means to redress injustice through democratic political procedures. In such circumstances, the application of a margin of appreciation would give the wrong impression that the Court is

162See, for instance, Hirst v. UK (No. 2), (finding a violation of art. 3 of the First Protocol in view of the blanket nature of prisoners’ disenfranchisement, without any regard to gravity of their offences and to nature of their sentences). See also, ECtHR, Aliev v. Ukraine (Appl. No. 41220/98), Judgment (Fourth Section), 29 April 2003, not reported (a prisoner’s right to receive an intimate conjugal visit by his partner).

163See, for instance, ECtHR, Dickson v. UK (Appl. No. 44362/04), Judgment (Grand Chamber), 4 December 2007, selected for publication in Reports of Judgments and Decisions (the right to receive an intimate conjugal visit by their partner and the right to be given artificial insemination facilities to conceive a baby). See also, Aliev v. Ukraine, paras. 187–9.

164Greer, ‘Constitutionalising Adjudication’, at 420; and Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 921.

165See, for instance, T. Meron, ‘Martens Clause, Principles of Humanity, and Dictates of Public Conscience’, American Journal of International Law 94 (2000) 78–89, at 85.

166Ibid.