What is the “margin of appreciation”?
The phrase 'margin of appreciation' refers to the way in which the European Court of Human Rights (ECtHR) defers to the will of individual states, in specific circumstances. The reason for this is that there may be instances, where the ECtHR judges that national interests may reasonably come before the rights of individuals. This may occur in issues regarding national security, local government policy or moral matters such as euthanasia. The ECtHR recognises that nation states should not necessarily be sanctioned, simply because they exercised discretion in their interpretation of the law. This does not mean, however, that human rights law can be overridden by individual states.
You can read more at RightsInfo.org here.
Article 8 (2) states:
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
Article 8 (2) looks, on the face of it, to be a sensible way to ensure that human rights law can be interpreted in order to get around problems in bringing offenders to justice, or at least to remedy civil wrongs. However, the disproportionate use of 8(2) can also be the cause of this very problem. Imagine an authoritarian government, who wish to silence their critics. They might try to use 8(2) to get around 'unhelpful' issues like the right to not be separated from their family, the right to a particular sexual orientation, or the right to not be spied on.
So how has the ECtHR dealt with cases where Article 8 has allegedly been restricted unlawfully?
Buckley v UK (1997)
This case concerned Mrs Buckley, who wanted to reside in a caravan on her own land. The local authority, however, did not allow this, due to their planning laws regarding such issues. Buckley applied to the ECtHR on the grounds that her Article 8 rights had been breached. In this case, her "home" should not have been interfered with in an arbitrary way by the local council, simply because of planning decisions. The ECtHR decided against Buckley, on the grounds that although there was an interference with Buckley's home, it was within the "margin of appreciation" of the UK's planning laws.
A, B, C v Ireland (2011)
Here, two women traveled to the UK for abortions due to health and social problems that they suffered. The law in Ireland did not permit abortion, even in cases where the private lives of the mothers (and potentially the children) would be interfered with and be detrimental to their health and well-being. The ECtHR ruled against the women, on the grounds that a wide "margin of appreciation" allowed the state to decide which moral rules should be protected, even if it was in contradiction to laws in other, more liberal European states.
Pretty v UK (2002)
Diane Pretty suffered from Motor Neurone Disease and wished for her life to end at a time of her choosing. However, assisting someone’s suicide is a criminal offence and Pretty didn’t want her husband or anyone else to be punished for aiding her. She appealed to the ECtHR as she believed the law in England and Wales was in breach of Article 8, the right to a private and family life. Pretty argued that this included her right to decide on how her life should end. The ECtHR disagreed with Pretty and decided that the margin of appreciation in her case meant that the ECHR should defer to the UK Parliament.
Does the ECtHR’s use of the margin of appreciation undermine the universal nature of human rights? Be able to demonstrate both sides of this debate, to score more highly in evaluative questions.)
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