The margin of appreciation doctrine in the dynamics of European human rights jurisprudence.

Abstract

The European Human Rights Convention is a treaty-based, divided-power system created for the specific purpose of assuring the protection of basic human rights within its signatory states, members of the Council of Europe. Under its terms, authoritative supervision is imposed by an international Commission and Court (the European Commission and the European Court of Human Rights) upon the legislative, executive, administrative and judicial authorities of the States Parties. This work offers an analysis of the evolution of the supervisory jurisprudence as embodied in the case law of the Commission and the Court. It surveys the relationship of this body of case law to the States Parties' obligations under the treaty, highlighting the development of the "margin of appreciation (discretion)" doctrine as a central tool in the evolution. The study focuses upon the methodologies by which the central authorities within the Convention system decide upon the scope of their own supervisory powers, and consequently upon the scope of the discretion which will remain vested in the national authorities for the definition, interpretation and application of the basic human rights guarantees contained in the treaty. The study clarifies the interaction between national and European arrangements for the protection of basic civil and political rights within the Convention system through the interplay of the international supervisory function and its corollary, the national margin of appreciation doctrine. It offers some insights into the processes of legitimation and consensus formation surrounding basic human rights at the European regional level. In analyzing the evolution of the international supervisory function of the European Human Rights Convention organs, one hopes to arrive at a keener understanding of the interplay between judicial interpretation and the increasing sophistication of the European human rights protection system. The study shows that the judicial supervisory function in human rights protection is dependent upon the unique systemic setting in which it finds itself, and thus upon the stage of integrative growth (or disintegrative decline) of the culture which encompasses it. However, it should also demonstrate that courts are not only conditioned by, but can in turn condition, the degree and quality of consensus and integration within the society in which they fulfill their role.