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Published: Fri, 02 Feb 2018
The Margin of Appreciation; its limits and inconsistencies.
“The limits of the margin of appreciation are incapable of an abstract definition. The margin of appreciation is thus “context dependent” and its limits can be drawn only within a specific case.”
Justice Rudolf Benhardt.
The application of margin of appreciation in the jurisprudence of European Court of Human Rights is devoid of consistency and uniformity. Each case appearing before the European Court of Human Rights (ECtHR) is different and every decision made depends on the circumstances at hand. This paper seeks to define the margin of appreciation, the guiding principles the ECtHR considers before declaring whether or not a state acted within its margin of appreciation and the application of this doctrine in the European Court of Human Rights. It illustrates inconsistencies in similar fact cases and the decisions made by the court. It concludes by looking at the effects of inconsistencies and lack of limits in the application of the doctrine and whether they are good or bad to the jurisprudence of the court.
The space for maneuver that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights is explored as the embodiment of the concept of margin of appreciation.  This doctrine was initially developed to respond to member states concerns that the Convention rights would unreasonably prohibit them from implementing national security measures  but the European Convention on Human Rights (ECHR) being a living instrument this has been applied to Articles in the Convention which do not specifically allow for exceptional derogation. It is mainly invoked in attempts to justify rights that have been infringed by states under articles 8 to 11 of the charter. To be awarded this doctrine by the ECtHR a state must have a reasonable relationship between a particular objective to be achieved and the means to achieve it.  The court uses a strict approach and the following five principles must be met application if this doctrine  and it should not be abused. 
The principle of effective protection.
The principle of subsidiary and review.
The principle of permissible interference.
If interference is prescribed by the law.
If the interference has legitimate claims.
If the interference is necessary in a democratic society.
The principle of proportionality. 
If there is a pressing social need for some restriction of the convention.
If so, does the restriction respond to this need?
If so, is it a proportional response to that need?
Are the reasons presented by the authorities relevant and sufficient?
The principle of the European consensus.
After examining the above principles courts have given the following reasons as to why the discretion is left to national courts.
State authorities are in a better position than the international judge to give an opinion on the exact content of the requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet a case on a local issue. 
It is difficult to identify a uniform European standard of human rights because of the diverse cultural legal traditions emerged by each member state therefore the commission is envisaged as the lowest denominator. 
The ECtHR is a subsidiary of National systems safeguarding human rights hence it has a supervisory function rather than it acting as a court
The ECtHR would not like to interefere with the sovereignity of states in political issues.
The Application of the Doctrine of the Margin of appreciation by the courts.
The application of this doctrine has been illustrated in two different ways with regards to the ECtHR. They are:
The application of the doctrine between individuals and the state.
The application of the doctrine among states themselves.
Application between individuals and the state.
When it comes to individuals and the states; States are awarded a narrower margin of appreciation because the articles in the convention are specific and drafted with great detail leaving very small space for state interference and applications.  The provision of both positive and negative obligations to the states limits this interference.  Conflict has however arisen when it comes to articles 8-11 for this is where the court has given the most inconsistent, unequal and vague decisions.  In these clauses states are given a wider margin of appreciation when it comes to morality, state security and religion thus questioning the authenticity of this doctrine. Handyside v UK  illustrated this when the court stated that the state did not infringe on the rights of Handyside as its judges had a basis, in exercising their discretion left to them by the convention, for finding that the book would have a pernicious effect on the morals of the likely readers aged between 12 and 18 years. The state had the duty to protect the young generation from corruptible morals. Though states are given this power it is under the deference of the court, the question of objective morality then arises. Does it underpin both the collective and individual human rights as the personal rights of an individual are not considered and this goes against the mandate of the Convention?  The importance if the individual right and the right of the state limiting certain rights are all put into consideration while the court makes the decision when deciding whether to grant a wider or narrower margin.  The same applies for where a matter of national security is at hand as was illustrated in Lawless v Ireland  , where Lawless contended his arrest and detention without trial. He stated that it infringed Article 5 of the convention. Ireland defended itself stating that the arrest was legal as per the 1940 state of emergency act since Lawless was arrested when there was a state of emergency. Ireland also stated that the act was necessary to maintain peace and public order. The court stated that Ireland acted within its mandate in arresting Lawless. The state had a right to protect itself against attacks that would make it unstable as a state. States have been given a wider margin of appreciation when it comes to protection of its self preservation. Article 15  allows states to derogate certain rights and Ireland acted within this mandate. It is however worth noting that the “exceptional clauses” however limit the powers of states when applying this doctrine while restricting the rights contained in Articles 8-11.
Application among states.
When it comes to states the court gives it absolute powers to a state defending itself from attacks and the sovereignty of a nation is threatened.  Greece v UK  where Greece alleged the UK practiced non observance of the convention while in Cyprus and that UK’s invocation of article 15 did not meet the requirements at that time. Britain maintained that it rightfully invoked article 15 in the detention and deportation of persons as at that time. While relying on the margin of appreciation awarded to states the court stated that the UK had the right to use all the provisions in Article 15(1)  it states “The government should be able to exercise a measure of discretion in assessing the extent strictly required by exigencies of the situation” and the United Kingdom had the right to do everything in its power to protect its sovereignty. The structural approach  used by states helps when it comes to a matter threatening its existence or where the human rights of individuals in a neighboring state are being violated as illustrated by the four  states that brought action against Greece and the court stated that Greece was in breach of the convention and its claims that there was a state of emergency unjustified.
A Critique of the margin of appreciation: The case law of transsexuals and the European Court of Human Rights.
Transsexualism: An individual’s identification with a gender inconsistent or not culturally associated with their biological sex.  A transsexual is a person experiencing impaired functioning or distress as a result of that gender identification.  Sexuality has been one of the most controversial issues the ECtHR is faced with.
In X, Y and Z v UK,  X was a female who lived with Y another female as a married couple. X had a gender-reassignment and lived his life like a man thereafter. X and Y then had a baby through Artificial Insemination by Donor (AID) and named it Z. On trying to register his name as Z’s father his request was rejected as he was not the biological father. In applying for jobs he got one in Botswana and part of the package was that dependants and spouses get free education. He could not to take the job as Z was not registered as his son and couldn’t claim any benefits. He pursued the matter to the ECtHR on the grounds that UK had interfered with his private life by not recognizing him as the father of the child because he was a transsexual. He also purported their private life as a family was being interfered with. The court stated, “The present case raises different issues, since Z was conceived by AID and is not related, in the biological sense, to X, who is a transsexual. The Court observes that there is no common European standard with regard to the granting of parental rights to transsexuals. In addition, it has not been established before the Court that there exists any generally shared approach amongst the High Contracting Parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of father should be reflected in law.” The UK had therefore acted correctly within its margin of appreciation and the rights of X, Y, and Z had not been infringed on.
Four years later a similar case appeared and a landmark decision was made by the court in Christine Goodwin v UK  where Christine underwent a gender-reassignment surgery and lived in the society as a female though she was still considered male for legal reasons. The legal reasoning being that birth certificates are based on biological criteria and cannot be changed even after an operation. Christine’s complaint was that though she was living as a woman she would continue to pay National Insurance until she was 65 as other men while as a woman she would only pay till the age of 60 and that she also had to make special arrangements for these payments to prevent her employer from knowing about her sex change. She filed this case under article 8.  The court noted that there was a serious interference with private life where domestic laws conflict with an important aspect of personal identity and that such a situation may lead to vulnerability, humiliation and anxiety among transsexuals.  It also stated that the fact that the National Health Service paid for the gender-reassignment surgery meant that the state legally recognized the existence of post operative transsexuals. The matter was found admissible and Britain was liable of infringing Article 8 interfering with Goodwins’ private life and that it should give transsexuals new identities. The court concluded that there was gaining common ground in the UK and was becoming a trend in Europe hence there was no objection to this.
Article 8 not only imposes a negative obligation to the state but also a positive one which is the obligation to take protective measures.  The state has a positive obligation of taking protective measures to protect its citizens from vulnerability and humiliation. After looking at this two cases consensus is the most obvious reason drawn as the reason behind the judgments. One then questions Handyside’s case where the book had been published in other countries  before UK this might have been argued as the existence a common ground in this particular matter yet the court asserted that there was no uniformity concept of morals between contracting states.
Inconsistency is a threat to the rule of law  as states seem to be overstepping their mandate while using this doctrine with the discretionary powers awarded to them. Secondly this doctrine is neither enshrined nor defined in the convention creating an uncertainty to individuals and legal practitioners as per the limits to which this doctrine is allowed. Lord Lester criticizes this approach in his paper and states ‘The danger of continuing to use the standard less doctrine of the margin of appreciation is that, especially in the enlarged Council of Europe, it will become the source of a pernicious, variable’ geometry of human rights, eroding the acquis of existing jurisprudence and giving undue deference to local conditions, traditions, and practices’.  This elusiveness in its definition allows for abuse of process by local courts in the name of discretion leading to the lack of clarity. The court uses evasive words like ‘necessary’ and ‘certain’ in its definition,  words that are vague and relative in their definition. Their meanings vary from case to case in every scenario creating uncertainty in state freedom hence a lack of uniformity in judgments. There is a need for a principle standard of identification to avoid states looking like they are above the law. The lack of a systematic and detailed justification for the use of the doctrine by states should be discouraged  as it threatens the rule of law.
ii.) Objective Moralism, Consensus and Deference.
The European consensus herein pluralism, objective morality and deference given to states by the ECtHR with regards to the application of this doctrine underpins individual human rights which is the Conventions ambit.
The ambiguity in consensus by the courts is worth noting. It does not give a baseline of consensus but only states while in other cases consensus was not needed in others a clear and uncontested evidence of a continuing international trend is needed.  Pluralism illustrates the existing lawlessness between contravention and compliance of member states  when it comes to human rights violations. The increase in numbers of states joining the European Union may dilute the intention of the convention since pluralism may erode the principle of the Convention by ignoring eccentricity. The lack of a common ground also illustrates that the court may not want to give a decision in a sensitive matter affecting states.
When it comes to morality states have a wider margin of appreciation. The court stated; “the nature and requirements of morals vary from one country to another, from one region to another”  The lack of a uniform concept therefore gives courts reasons to evade its duties. Public morals vary among states and this should not be reason for courts to impose rules on people because there is no common moral ground. Benvenisti  criticized this approach stating, “The juridical output of the [European Court of Human Rights] and other international bodies carries the promise of setting universal standards for the protection and promotion of human rights. These universal aspirations are, to a large extent, compromised by the doctrine of the margin of appreciation…. Margin of appreciation, with its principled recognition of moral relativism is at odds with the concept of the universality of human rights.”
The ECtHR gives deference to National courts because there is a possibility that national highest courts have indicated that they will not always comply with the decision of the ECtHR.  Deference is used to avoid conflict between national courts and states and is a symbol of unity.  By giving deference the ECtHR gives respect to national constitutional traditions and preventing situations of real conflict. Where the court solely relies on correspondence given to it by states’, accurate investigations and findings are prevented threatening its unity and compliance  and this is what the court is trying to protect.
The doctrine of the margin of appreciation as illustrated is evolving with time. Though it is difficult to know the courts intention it can be said that its intention was to balance the existing conflict between individuals and their governments. By awarding states a wider margin of appreciation on certain instances, individuals are automatically awarded a lower margin therefore reducing the balance of interests weighed in while applying this doctrine therefore promoting the violation of human rights authentically. Consequently we should not forget that by states surrendering part of their sovereignty to the courts by agreeing to abide by its decisions promotes unity and compliance among member states.
The doctrine of the margin of appreciation is very important for international legal systems e.g the EU which has different states that don’t have similar norms, cultures and beliefs.  This shows individual state interests are put before those of the court
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