Margin of Appreciation

Margin of Appreciation Meaning

The Margin of Appreciation grants a certain degree of discretion to the legislative, administrative or judicial bodies of member states, due to their differing constitutional and legal arrangements. This principle allows for signatory states to have some room for decision-making in areas where the European Convention on Human Rights (ECHR) applies. It recognizes that different member states may have different legal, social, and cultural traditions, and thus may interpret the Convention differently. Therefore, the Margin of Appreciation principle serves as a means to strike a balance between respecting the autonomy of states and upholding fundamental human rights at the same time.

The Concept of Margin of Appreciation

The Margin of Appreciation is a principle used in the interpretation and application of the European Convention on Human Rights (ECHR) that recognises the balance that should be maintained between a state's sovereignty and its obligations under the Convention. The principle acknowledges that states are best placed to judge how human rights are to be protected within their own territories. It gives states a degree of flexibility in their interpretation of the Convention, recognizing the need to account for cultural, social, and political differences. However, it is not an open license for states to infringe on human rights, but rather a mechanism to ensure that states fulfill their obligations under the Convention in a way that respects the diversity of their societies.

Doctrine of margin of appreciation

The margin of appreciation employed by the ECtHR to interpret ECHR rights does not apply in the home environment. The UK House of Lords examined the margin of appreciation in R v Director of Public Prosecutions ex p Kebilene [2000] HRLR 93. Lord Hope:

“The doctrine of the ‘margin of appreciation’ is a familiar part of the jurisprudence of the European Court of Human Rights… By conceding a margin of appreciation to each national system, the Court has recognised that the Convention, as a living system, does not need to be applied uniformly by all states but may vary in its application according to local needs and conditions. This technique is not available to the national courts when they are considering Convention issues arising within their own countries. But in the hands of national courts also the Convention should be seen as an expression of fundamental principles rather than a set of mere rules. Questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality.

In this area, difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention... It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”

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