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Human Rights Law - Margin of Appreciation Summary
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  • Course
  • Human Rights Law
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  • Oxford University (OX)

Comprehensive summary/exam notes on the margin of appreciation in Human Rights Law. This document covers the first conception of the margin of appreciation in Handyside v UK, and the different conceptions of the margin of appreciation set out by Letsas (structural and substantive).

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Document information

  • October 7, 2024
  • 5
  • 2022/2023
  • Summary

Subjects

  • human rights
  • human rights law
  • margin of appreciation
  • handyside v uk

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  • Oxford University (OX)
  • Unknown
  • Human Rights Law
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Margin of Appreciation
Margin of Appreciation = allows the ECtHR to recognise and respect the differences between
domestic laws of the contracting parties as they relate to substance and procedure.
Idea was first clearly enunciated for the first time in the case of Handyside v UK in 1976.
Involved a potential violation of the Article 10 right to freedom of expression.
The Court recognised its role as a review rather than an appeal court, and therefore
allowed the UK a “margin of appreciation” to determine whether the interference
claimed was “necessary in a democratic society for the protection of public morals”,
as appropriate for the domestic system.
This margin entailed the ECtHR lending considerable weight to the balance
struck by the state.

Two different conceptions of the margin of appreciation – Letsas:
Structural:
External characteristic of the state, e.g., expertise.
MoA imposes limits on the powers of the judicial review of the ECtHR, by virtue of
the fact that it is an institutional court.
The margin has to do with the relationship between the ECtHR and national
authorities, rather than with the relationship between human rights and the
public interest.
Should states be given leeway on how they might regulate political advertisements?
Substantive:
Intrinsic quality of the reasons provided by the state along with substantive
considerations of the particular right in question.
“Limitation” clauses in Articles 8-11 ECHR.
In determining whether a “fair balance” has been struck, can afford a certain
degree of weight to the balance struck by the state.
Deference as part of the proportionality analysis.
Is being able to freely express yourself essential to democracy?

“Staying true to human rights”:
Means firmly devoted or loyal to something.
If the court is to stay true to human rights protection, they should not defer merely on grounds
of greater institutional competence of national bodies, whereas it may still be possible for
them to engage in more substantive considerations of the right in question.
It is possible for the ECtHR to defer to national executive or legislative bodies while
still staying true to human rights if they apply solely substantive considerations, as
opposed to structural considerations.
This conclusion is inevitable given that substantive approaches require a
more thorough examination of the decision of the national body so that the
Court can properly assess whether they are justified in deferring in the
particular case and ensure that human rights are being protected as far as
possible.
BUT – building on the argument put forward by Letsas, it is not, in reality,
possible for the Court to apply solely substantive considerations to cases as
this is unavoidably interwoven with structural considerations.

Does the ECtHR’s application of the MoA merely reflect an idea of institutional competence, or
does it also reflect the ECtHR’s view of the substantive requirements of the particular right?

Structural:
The dependence of the right/qualification in question on local conditions/knowledge:
This has two aspects:

, The content of the right/qualification varies between states and also that the state is in
a better position to know about the necessity of the measure in question.
This latter aspect includes the idea that national authority decision-makers include
tacit expertise.
When it comes to determining what morality requires, local Governments can
only know this by being part of the culture, and you cannot really explain that
in the short oral/written submissions before a court.
Such considerations were clearly in play in Handyside v UK where the Court recognised that
it was unable to find a uniform European conception of morals and consequently by reason of
their “direct and continuous contact with the vital forces of their countries” national
authorities are in a better position than the international Court to judge the exact content of
these requirements as well as on the necessity of a restriction of the Article 10 right.
Grounds for doubt?
Follesdal – rightly expresses concerns about this, specifically arguing that it is not
obvious that national authorities are well placed to specify any impact on minority
interests.
National standards of morality are far from homogenous or unified and
inevitably support a majoritarian view and will rarely, if ever, take account of
the minority perspective.
A considerable number of cases that come before the ECtHR, specifically in
relation to claims brought under Article 14 ECHR, concern the infringement
of the rights of a member of the minority.
By presuming that the national authorities are better placed to assess the
necessity of an infringement on a Convention right and the damage this
would cause to the interests of national society, the Court disregards its duty
to protect the human rights of all citizens of the Council of Europe, not just
the views of the majority.
Links to idea in Article 1 ECHR that the rights and freedoms are to
be guaranteed for “everyone within [the] jurisdiction” of the
Contracting States.
Compounded by the fact that majority views are not all equally worthy of being
credited, with some being oppressive or discriminatory.
Potential argument to bring in here about whether the Court is able to filter out unjustified
views.
Key example is in the case of Smith and Grady v UK in which the Ministry of
Defence, in arguing that their infringement on the applicants’ Article 8 right was
necessary, relied on interviews conducted on how people would feel about having gay
people serve in the army.
The Court ruled in this case that such interviews and their results were built
on prejudice, and such should be discounted.
This certainly does provide hope that the Court would indeed be able to filter out any
unjustified views however it must be pointed out that such assessment was carried out
within the confines of the British military, and it is unclear/unknown if and how such
exercise could be carried out with regards to the wider majority views of, for
example, the country as a whole.
Consensus:
Court also uses the idea of a consensus across the Council of Europe in order to defer to
national executive and legislative bodies; the lack of any such consensus widens the margin
of appreciation granted to the national decision maker.
Such exercise arguably undermines the Court’s ability to stay true to HR for two reasons:
First – the whole idea is highly vague and accordingly would likely be exercised in a
rather ad hoc fashion by the Court.
This is expressly clearly by the dissenting judgment in Lautsi v Italy – case
concerning the presence of religious symbols in State schools in Italy.

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