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Human Rights Quarterly 23.3 (2001) 625-649

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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

Oren Gross & Fionnuala Ní Aoláin

I. Introduction

The margin of appreciation doctrine has come to occupy a central position in the jurisprudence of the European Court of Human Rights ("Court") operating under the European Convention on Human Rights ("European Convention"). 1 Not mentioned anywhere in the European Convention itself or in the Convention's Travaux Préparatoires, 2 the doctrine has developed in the case law emanating from the Court and the European Commission of Human Rights ("Commission"). 3 [End Page 625]

Its origins found in the context of the continental legal systems' judicial review of administrative decisions, the margin of appreciation doctrine has been adopted by the Strasbourg organs and transplanted into the regional level of adjudicating human rights issues. 4 Generally speaking, the doctrine stands for the notion that the authorities of each state party to the European Convention ought to be allowed a certain measure of discretion in implementing the standards enshrined in the Convention. Using the margin of appreciation, the Court gives the state coming before it a certain leeway in choosing the appropriate regulatory response to matters affecting rights protection within that state's territorial boundaries. A feature of a supranational judicial system, 5 the margin of appreciation doctrine is an interpretative tool designed to balance the sovereignty of the states parties with the need to ensure "the observance of the engagements undertaken by the High Contracting Parties" under the European Convention. 6

In this Article we focus on the application, by the Court and the Commission, of the doctrine within the context of the derogation regime under Article 15 of the European Convention. We note the expansion and extension of the doctrine by the Court and the Commission, both in the context of defining what constitutes a "public emergency threatening the life of the nation" as well as the substantive oversight brought to the actual practice of emergency powers by states. We then argue the negative effects of ceding to state-centered claims in situations of exigency for both the substantive protection of rights and the integrity of international oversight. In particular we suggest the problematics of reliance on the margin of appreciation when examining situations of entrenched emergency.

We follow this analysis by offering an alternative to the lax application of the margin of appreciation by the Court. We argue for a heightened level of judicial scrutiny of, a less deferential judicial attitude towards, states' resort to the derogation power. Suggesting to treat emergencies in general as "suspect situations" meriting a stricter judicial attitude towards states' claims, we establish the desirability of giving special attention and treatment [End Page 626] to entrenched emergencies of the sort that has come before the Court and the Commission. The function of this heightened scrutiny lies in ensuring protection for fundamental rights in situations of emergency when human rights protections are most fragile. Emergencies are extraordinary events. They require extraordinary scrutiny and a willingness to confront the potentially abusive practices of states that may lead to systematic denials of rights, concentration of state power in narrow executive structures and the subversion of democratic principles by legal means. 7

II. Margin of Appreciation: A "Realistic and Appropriate Tool" or "Slippery and Elusive as an Eel"?

The margin of appreciation doctrine has been the subject of heated debates. Those endorsing the doctrine view it as a realistic and appropriate tool by which an international court facilitates its dialogue concerning sensitive matters with national legal and political systems and with their unique values and particular needs. Seen from this perspective, the margin of appreciation reflects the existing cultural diversity among the states parties to the European Convention. 8 Supporters of the doctrine draw attention to the role of the Convention system as subsidiary to...


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