All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European... ABSTRACT The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. Section 2 of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs—application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Section 3 then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Section 4 concludes. 1. Introduction The margin of appreciation (MoA) doctrine is often thought about as a human rights law doctrine, which has been tailored for the special institutional needs and political characteristics of one regional system—the Council of Europe’s European Convention on Human Rights (ECHR)1—and thus has no general application outside that particular regional context. Indeed, none of the other international human rights bodies have explicitly embraced the MoA doctrine; some have, in fact, rejected it, as a guiding doctrine, explicitly or implicitly.2 This state of affairs stand in marked contrast with the view I have expounded in a previous article, in which I suggested that granting states some margin of appreciation should be, and often is, an integral part of international adjudication, thus calling for the development of a general MoA doctrine in international law.3 The present article seeks to explore the possibility that a gap exists between the perceived rejection of the MoA doctrine by all international human rights bodies, other than the European Court of Human Rights (ECtHR), and their actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of pro-deference considerations. I will focus in this article on the engagement with MoA and MoA-like doctrines of one international human rights bodies with whose work I am intimately familiar—the UN Human Rights Committee (HRC). Arguably, a close look into the work of the Committee may suggest that, contrary to appearances, the Committee is not averse to certain modalities of the MoA doctrine, and that it has developed in its case law approaches that are somewhat analogous to those found in the jurisprudence of the ECtHR. Although the scope of the examination offered here is rather narrow—covering in a non-exhaustive manner the practices of only two international human rights bodies (HRC and ECtHR)—my findings may have relevance for other international adjudication bodies as well. It would require, however, further research into the practices and policies of other international human rights bodies in order to fully appreciate the role of MoA and MoA-like doctrines in international human rights law. Following these introductory remarks, Section 2 of the article surveys the application of the MoA doctrine in the case law of the ECtHR, identifying three analytically separate prongs—application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Section 3 then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Section 4 concludes. 2. Application of the Margin of Appreciation Doctrine in the Jurisprudence of the European Court of Human Rights The proposition that the MoA doctrine has played a key role in the development of the jurisprudence of ECtHR is hard to argue against. The early decisions by the European Commission of Human Rights to afford Member States a margin of discretion or a margin of appreciation in state of emergency cases (the Cyprus case,4 the Greek Case,5Lawless6) and in realizing certain Convention rights (the Belgian Linguistics case),7 were endorsed by ECtHR judgments, which implied that a certain degree of deference is due to state authorities in decisions on the application of Convention,8 and suggested that the Convention machinery ought to be regarded as subsidiary to legal procedures available at the domestic level.9 From the mid-1970s onwards, the MoA doctrine has been explicitly relied upon by the Court to justify grant of deference to Member States in interpreting and applying the terms of Convention, and it has been invoked to date in almost 2000 judgments of the Court.10 The doctrine has also been incorporated into Protocol 15 to the Convention (not yet in force).11 The MoA doctrine has been justified by the ECtHR on the basis of two principal policy rationales: (i) the better position rationale—according to which national institutions are better situated than Convention institutions to evaluate local conditions;12 and (ii) the related subsidiarity rationale—according to which decisions purporting to strike a balance between competing rights and interests, which entail a choice between competing social values, should be taken by the democratically elected representatives of the relevant member State.13 Furthermore, the breadth of the margin of discretion retained by national authorities has been linked by the Court to a multiplicity of factors, including the nature of the rights in question,14 the importance of the policy aims pursued by national authorities,15 the availability of adequate procedural safeguards at the domestic level,16 and the degree of European consensus on the interpretation and application of the right in question.17 Hence, for example, no margin of appreciation has been afforded by the ECtHR to member States with respect to the interpretation and application of Article 3 of the European Convention (prohibition of torture and ill-treatment), which the Court has described as fundamental and absolute in nature.18 Thus, the Court has opted in situations giving rise to a risk of torture or ill-treatment for a ‘rigorous’ standard of review.19 At the same time, member States were afforded a relatively broad margin of appreciation when invoking limitations to Convention rights in national security cases20 and in circumstances in which invoked limitations corresponded to deeply held moral convictions.21 Furthermore, the scope of the MoA afforded by the ECtHR to the member States has not been fixed in time. According to the Court’s jurisprudence, an emerging European consensus on the specific interpretation or manner of application of Convention rights may lead over time to a gradual narrowing of the margin of appreciation afforded to the member States.22 In doing that, the Court, in effect, ‘locks-in’ the new consensus and prods those remaining member States that retain contrary practices to conform with the rest.23 Given the centrality of the MoA doctrine to the jurisprudence of the ECtHR, it is not surprising that it has attracted much interest and critical analysis, which discussed the normative implications of the MoA doctrine as well as its realpolitik aspects, which may influence the effectiveness of the Strasbourg system: the doctrine has allowed the Court to increase the acceptance of its judgments through developing its jurisprudence in an incremental manner,24 and to facilitate the gradual emergence of consensus among member States.25 It also offered the Court a face-saving way out from politically-charged and value-laden confrontations with recalcitrant States.26 Critiques of the ECtHR have pointed out, however, that due to the open-ended nature of the criteria for applying the MoA doctrine, the Court enjoys extremely broad discretion in determining when and how to apply it.27 Furthermore, several commentators have claimed that the Court has been using the doctrine, at times, in order to avoid the need to adopt inconvenient decisions on controversial questions (such as the right to life of the unborn).28 In any event, the effects of excluding some Convention rights from field of application of the MoA doctrine, while applying the doctrine to other Convention rights, has allowed the Court to exercise de facto varying levels of judicial supervision over different member States. Whereas the Court affords considerable leeway to complicated norm-balancing problems arising out of the interpretation and application of the ECHR, which typically occupy the established democracies of Western Europe, it has tended to apply a more rigorous standard of review when examining allegations of serious violations of basic rights by the newer and more fragile democracies of Eastern Europe.29 A close look at the case law of the ECtHR suggests, however, that the MoA doctrine actually comprises a series of deferential moves adopted by the Court vis-à-vis national authorities:30 (i) application of law to facts; (ii) norm-balancing in law-application; (iii) norm-balancing in law-interpretation. While these moves are often intertwined in their application, they are analytically separate and often have a different justificatory logic and can be explained by way of reference to different policy rationales. The application of the MoA doctrine to declarations of state of emergency exemplify the doctrine’s ‘application of law to facts’ prong.31 The paradigmatic question, which the ECtHR confronted in cases such as Lawless32 and A v UK,33 was whether the threats to public safety or order posed by a certain security challenge or set of challenges amounted to a ‘public emergency threatening the life of the nation’, which could justify a derogation from the ECHR, pursuant to Article 15. This is a question involving a fact-based risk-assessment, and the Court has held on more than one occasion that national authorities have a broad MoA in making such factual determinations by reason of their proximity to local conditions,34 which confer on them a superior fact finding capacity, and because of their responsibility for maintaining law and order (ie the aforementioned better position and subsidiarity rationales).35 Furthermore, it appears as if the significant weight assigned to the policy aims underlying the declaration of a state of emergency has pushed the Court to confer on the relevant member States a broad MoA in evaluating the relevant facts, accepting to date all invocations of states of emergency as compatible with Article 15.36 The Handyside case37 represents the second paradigmatic application of the MoA doctrine by the ECtHR—norm balancing in the course of law-application. Cases falling within this category typically involve the invocation of a limitation on a Convention right by a member State (for example, in the Handyside case itself, the UK has invoked one of the enumerated exceptions to Article 10 of the ECHR—curbing of speech in order to protect public morals). Such an invocation requires both a finding of fact (that is, whether the factual situation relied upon falls within a permissible exception to a Convention right),38 but also a balancing of competing norms as part of the required proportionality analysis (that is whether reliance on the exception is normatively justified on the basis of a cost–benefit analysis involving the juxtaposition of opposing values).39 In these norm-balancing cases, a MoA was afforded to the national authorities not only by reasons of their superior fact finding capacity, but also—and arguably, more importantly—because of their ability to express the prevailing normative preferences and value choices of their polity. Such preferences and choices may be highly contextual and explain the specific impact on society of certain measures adopted or averted (eg whether due to the factual conditions and sensitivities prevailing in the State in question, demonstrations may cause a serious disruption of public order);40 but they may also be more abstract in nature, and relate to the weight that the relevant polity ascribes to the competing values implicated in norm-balancing (eg the exceptionally high value placed by a particular society on the need to protect children from obscenities).41 In this latter case, invocation of the MoA doctrine appears to be based primarily on the subsidiarity rationale; and the upshot of its application by the ECtHR is pluralism in norm-balancing during law-application, accommodating the divergent local preferences of different democratic societies.42 The Vo case43 represents the third prong of the MoA doctrine—norm-balancing in the course of law-interpretation. In the particular circumstances of that case, the ECtHR took the position that, in the absence of consensus on the value to be assigned to the right to life of an unborn foetus, the Court would grant a MoA to member States in determining the scope of application of Article 2 of the Convention.44 In conceding that certain ECHR rights may be afforded to individuals residing in certain member States (whose national authorities construe broadly a certain Convention right), but not to individuals residing in other member States (whose national authorities construe the same right narrowly), the Court seems to have gone one step beyond the Handyside balancing in law-application approach. In Handyside, the scope of the relevant rights and limitations remained constant for all member states, whereas MoA was afforded to the national authorities in connection with the concrete act of balancing between them in the course of the application of the relevant rights. By contrast, in Vo, the Court accepted that there may be variations in the interpretation of the scope of the primary right in question (the right to life). Arguably, affording MoA in determining the scope of ECHR provisions constitutes a strong version of subsidiarity and norm-pluralism, expressing the idea that the contents of human rights norms could diverge across societies should correspond to their specific conceptions of the good life.45 Separating analytically between the different legal moves undertaken by the ECtHR pursuant to the MoA doctrine and identifying their distinct rationales may help us in the next phase of the inquiry: examination of whether some version of the MoA doctrine has been applied, completely or partially, by the HRC. This is indeed the topic of Section 3 of this article. 3. The Human Rights Committee’s application the Margin of Appreciation Doctrine It is widely presumed that the MoA doctrine has failed to take root in human rights treaty systems other than that of the ECHR,46 and that it has been specifically rejected by the HRC.47 This difference between the approach taken by the ECtHR and HRC is often explained by reference to the greater challenges of legal diversity and democratic legitimacy confronting the universal human rights law system: Given the large number of State parties to the International Covenant on Civil and Political Rights (ICCPR) (which is 3.5 times greater than the membership of the ECHR), and their considerable geographical, political and cultural diversity, it has been asserted that an application of a MoA doctrine in the work of the Committee might have rendered hopeless its task of developing universally applicable standards, amenable to meaningful monitoring by centralized bodies.48 In terms of diversity, the universal system of human rights protection is indeed different from the European system, whose key member States share a similar culture, history and political tradition. The similar historical experiences and worldviews of many European States serve as a constraint on the diversity of legal positions and practices that is likely to be identified across the European region, and facilitates the harmonization of regional normative standards, notwithstanding the retention of a certain degree of pluralism through application of the MoA doctrine. No similar constraints on legal diversity and no similar conditions for harmonization exist, however, at the global level in which the HRC operates. Furthermore, the trustworthiness of non-democracies in faithfully applying international human rights law is more limited than that of democratic states that have institutions of governance and constituencies strongly committed to the ideology of the international human rights movement49 (sometimes, willing to go beyond universal human rights law standards).50 Whereas the ECtHR applies the Convention predominantly to democratic States with strong rule of law traditions the HRC monitors the human rights practices of many non-democratic States with relatively weak legal institutions, whose record of compliance Covenant is checkered at best (as is made apparent throughout the process of periodic review of State reports submitted to the Committee).51 Thus, whereas the ECtHR may find it reasonable to adopt a principle of subsidiarity, leaving national decision-makers with considerable flexibility in adjusting human rights norms to local conditions, the HRC is expected to insist on closely scrutinizing the manner of application of the Covenant by the State parties. But did the HRC really reject the MoA doctrine? It has been noted by Andrew Legg and other commentators that the Committee has, in a handful of cases, resorted in its Views to the terminology of ‘margins’ and ‘discretion’, resulting in the grant of deference to decisions taken at the national level.52 But even more significantly, it appears that in many more cases the Committee de facto accorded state parties a considerable degree of deference without formulating a legal doctrine, such as the MoA doctrine, that would acknowledge and justify such grant of deference. On the basis of these implicit grants of deference, James Crawford observed that the Committee has been ‘speaking silently’ the language of the MoA doctrine.53 Analysing the relevant case law of the HRC in accordance with the three prongs of the MoA doctrine as it was developed by the ECtHR may help us to evaluate claims about the actual MoA-friendly practices of the HRC and to assess the actual gaps in law and practice between the two institutions. A. Application of Law to Facts With relation to the first prong of the MoA doctrine—application of law to facts—it appears as if the default position of the HRC, when assessing whether a given set of facts or domestic laws meets a legal standard found in the Covenant (or in the jurisprudence of the Committee, which has interpreted it), is deferential to the domestic decision-makers who have previously reviewed such facts or domestic laws. For example, in extradition or deportation cases, the legal standard employed by the Committee to evaluate the lawfulness of the removal of the relevant individual from the state whose decision to remove is being challenged, involves appreciation of the applied factual risk assessment—whether or not ‘there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.54 In dozens of cases in which national authorities have applied this risk assessment standard (or an equivalent standard), the Committee refused to intervene in the decision of national authorities, citing in some of these cases a concern that it should not act as a Court of Fourth Instance. For example, in the recent RG v Denmark, the Committee has held: The Committee further recalls its jurisprudence that considerable weight should be given to the assessment conducted by the State party, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice, and that it is generally for organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists … . Although the authors challenged the Board’s composition and the quality of the translations and the interpretation of statements presented to it, their claims in that regard are of a general nature and do not establish that evaluation of their asylum application by the Danish authorities was clearly arbitrary or amounted to a denial of justice.55 A similar deferential approach to fact-finding by domestic authorities can be found in other cases decided by the HRC, outside the field of immigration or refugee law. For instance, in van Meurs v Netherlands, a case involving alleged procedural flaws in domestic judicial proceedings, the Committee alluded to a general policy of granting deference to national judicial proceedings with respect to assessing the quality of domestic legal procedures: With respect to the author's claims that the hearing of his case was not conducted fairly, the Committee refers to its constant jurisprudence that it is not a "fourth instance" competent to reevaluate findings of fact or to review the application of domestic legislation. It is generally for the appellate courts of States parties to the Covenant to evaluate the facts and the evidence in a particular case unless it can be ascertained that the proceedings before the domestic courts were clearly arbitrary or amounted to a denial of justice.56 To be sure, the Committee has not always been consistent in applying the said standard of deference (though it has never renounced explicitly its application). This has led to the issuance of numerous dissenting opinions of Committee members, who have pointed out to inconsistencies and gaps between the Committee’s deferential rhetoric and actual practice.57 Still, there appears to be considerable support for the proposition that the HRC normally applies a deferential approach towards national authorities, when the latter engage in application of legal standards found in the Covenant to the facts before them (or to domestic laws). Actually, the logic of the better position rationale, which underlies the ECtHR’s invocation of the MoA doctrine to the application of law to facts, may operate with even greater force for the HRC: Unlike the ECtHR, the HRC does not have currently the capacity to conduct oral hearings when reviewing communications under the Optional Protocol and has no independent fact-finding capacity.58 Moreover, the ‘not a fourth instance’ approach taken by the Committee in these cases echoes the ECtHR’s subsidiarity approach in that it questions the propriety of closely reviewing issues already decided at the domestic level by a competent decision-maker. B. Low-Level Scrutiny As noted above, however, the MoA doctrine has been invoked by the ECtHR not only with regard to application of the Convention to facts or domestic laws, but also with regard to norm-balancing in the course of the interpretation and application of the Convention. In this latter context, the Court was willing to take the view that the relationship between competing values involved in the application of Convention rights and even the contents of these rights may vary for different member States, in accordance with the relative weight they assign to various social values. The position taken by the ECtHR raises, however, in my eyes, a number of theoretical and practical problems.59 First, it is less than clear that national authorities are better situated than an international human rights body to interpret international norms or even to balance, in the course of law-application, between competing values. To the contrary, international human rights bodies typically have greater expertise than national courts in the interpretation and application of international law. They also have greater access to the laws, practices and value-preferences of numerous jurisdictions (partly because of the nationally diverse composition of international human rights bodies), and such a comparative perspective enables them to critically evaluate the necessity and proportionality of law-application measures taken by a domestic decision-maker in ways which may be unavailable to domestic courts.60 Secondly, while the subsidiarity rationale may support the proposition that decisions relating to important value-laden questions such as whether or not to allow for abortion or euthanasia should be taken by democratically elected bodies, there may be countervailing considerations relating to the need to protect vulnerable individuals and groups adversely affected by prevailing and oppressive social and moral norms and beliefs from the ‘tyranny of the majority’. Arguably, an international human rights body should not give effect to laws and practices, which deprive individuals and minority groups of their protected rights, even if they are endorsed by the majority in the relevant polity.61 It is these doubts as to whether domestic organs are better situated than international human rights bodies, epistemically and institutionally, to determine the contents of human rights norms and to assign proper weight to competing values involved in their application, that may have led the HRC to refrain from developing a general MoA-like doctrine, which would afford deference to domestic decision-makers in relation to norm-balancing. These general concerns about the propriety of deferring to norm-balancing decisions of domestic decision-makers are further compounded by the aforementioned concerns of the HRC about the trustworthiness of the domestic institutions of some of its State parties, who do not have a strong human rights record or a democratic rule of law tradition, and by fears of loss of the legitimacy which the HRC derives from the notion that the human rights it interprets and applies are universal in nature.62 In particular, it is difficult for a global body, such as the HRC, which interprets and applies a treaty premised on the ‘inherent dignity’ and ‘equal and inalienable rights of all members of the human family’63 to accept that the contents of the international obligations of the state parties to the ICCPR could be different for each State party by reason of its own value choices and priorities. Yet, despite these doubts and concerns, one may find in the jurisprudence of the HRC in relation to cases involving norm-balancing legal measures that preserve a certain margin for domestic decision-makers, without using the language of the MoA doctrine or other language suggesting deference to domestic normative preferences. Arguably, such a ‘silent’ resort to deference by the Committee can be explained by a combination of principled concerns about comparative institutional advantages and subsidiarity, on the one hand, and realpolitik concerns about State compliance and challenge to authority, on the other hand. First, in a number of cases involving the application of limitation clauses under the ICCPR, the Committee has accepted without much discussion the position taken by State parties on the social necessity for limiting Covenant rights, without engaging in a detailed analysis of the propriety of the norm-balancing that had been undertaken at the domestic level. Such an approach may be analogized to the doctrine of minimum scrutiny (or ‘rational basis’) available in US constitutional law, according to which a relatively light burden is imposed on government agencies seeking to justify difference in treatment of individuals not belonging to ‘suspect classes’.64 In particular, the Committee never held that other State parties that would engage in a similar exercise of norm-balancing would be unable to reach different outcomes. It thus left the door open for the possibility that, like under the MoA doctrine, different State parties could adopt different Covenant-consistent norm-balancing measures. One possible example for application of low-level scrutiny by the Committee over balancing of norms by a state party is the Faurrison v France case, which concerned a French law banning holocaust denial. In its Views, the Committee accepted without much discussion the position taken by France, according to which limiting speech in order to protect the rights and reputation of others serves, in principle, a legitimate purpose under the Covenant: [T]he Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author's guilt was based on his following two statements: "… I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers … I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication". His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author's case by the French courts, is in compliance with the provisions of the Covenant.65 Note that the Committee did not actually scrutinize whether the decision by the French authorities to prioritize one set of norms (rights and reputation of others) over another (free speech) reflected a legally justified hierarchy of values, nor did it consider whether or not other State parties may embrace a different balancing test. These omissions may imply an implicit acceptance on the part of Committee that a variety of balancing outcomes relating to ‘memory laws’ may be deemed compatible with the Covenant.66 Other examples of a less-than-rigorous analysis by the Committee of norm-balancing conducted by State parties can be found in cases relating to limits on disclosure of materials relating to election outcomes in order to protect the integrity of the election process,67 the refusal to exempt a Sikh worker from the need to wear a hard hat for safety reasons, notwithstanding the offence to his religious sensitivities caused by the safety measure,68 the prohibition of the use of cannabis in religious rastafari ceremonies,69 and limits on the manner in which religion is taught in public school.70 In all of these cases, the resort to low-level of scrutiny has left unturned the norm-balancing decisions of the relevant state authorities. C. Restrictive Interpretation Another interpretive move taken by the HRC, leading to the de facto creation of a regulatory space in which State parties may perform norm-balancing and value choices, involves a restrictive interpretation of the Covenant in the face of lack of normative consensus. Arguably, in sensitive matters over which no specific agreement has been reached when the Covenant was negotiated, nor in the intervening years, and where state practice continues to diverge, article 31(3)(a)-(b) of the Vienna Convention on the Law of Treaties71 may support a narrow interpretation of the legal obligations assumed by the state parties. Hence, for example, one possible way to understand the position of the Committee on the controversial subject of the regulation of abortion under the Covenant is that the lack of consensus among state parties on whether Article 6 (the right to life) covers unborn foetuses and the failure to include an explicit reference to foetuses during the negotiating process, implies that the Covenant should be read as protecting the lives of human beings only after their birth.72 Thus, in abortion cases, only the lives of pregnant women appear to be protected by the Covenant, and state parties are left with a certain regulatory space to develop policies relating to the protection of unborn foetuses, in accordance with their value choices (as long as such policies do not infringe or unjustifiably limit the protected rights of pregnant women).73 Arguably, the HRC has opted for a similarly narrow interpretation of a Covenant right in the Joslin v New Zealand case, in which the Committee rejected the claim that the Covenant requires States parties to offer same-sex marriage, resulting in the preservation of considerable regulatory space for states in this field, which may be informed by their value preferences: Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. Use of the term ‘men and women’, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.74 The upshot of this approach is that the HRC can consider lack of consensus as a reason for affording state parties flexibility in the interpretation and application of the Covenant. Such an outcome is not very different than the outcome reached by the ECtHR under the MoA doctrine (where lack of consensus is a factor pushing in the direction of according states parties greater normative latitude); and it could be supported on the basis of general principles of treaty interpretation, which may consider lack of consensus as an element in negating the existence of a relevant rule of international custom against which treaties need to be interpreted,75 or lack of agreement by the State parties regarding interpretation of relevant provisions of the Covenant. At the same time, given the greater difficulty in establishing consensus at the global level, due to the great diversity across the State parties and the wide divergence in their attitudes towards the desirability of deepening international human rights standards, it is not surprising that the Committee alludes only rarely to the lack of existence of international consensus as an explicit constraint upon its normative work. Indeed, excessive reliance on actual consensus might dilute the human rights protections already offered by the widely-ratified Covenant. To be sure, the fact that the HRC may resort to low-level scrutiny or narrow interpretation of the scope of Covenant rights does not mean that it will choose to do so every time it is confronted by an instance of norm-balancing. Like with the ECtHR, the application of these de facto deference granting measures is expected to be, and actually appears to be inconsistent or even haphazard at times. Further research on the relevant practice, policies and rhetoric used by the HRC is warranted. Note however, that such further research is going to be complicated by lack of transparency: whereas the ECtHR, when invoking the MoA doctrine, is clearly signalling its intention to grant deference to domestic decision-makers, the HRC’s intention of doing so might need to be surmised from opaque decisions, which may be laconic in nature or embrace a cautious approach for reasons unrelated to MoA-like considerations. 4. Concluding Remarks Ultimately, the differences between the approach taken by the ECtHR and HRC with respect to the grant of deference in the application of legal standards involving evaluation of facts and domestic law, and in affording state parties a regulatory space in relation to controversial questions of law, policy and morality, are less marked than may appear at first look: both institutions clearly accord deference to domestic authorities in certain cases (application of law to facts), and explicitly or implicitly preserve their regulatory space in other cases (norm-balancing). Although the ECtHR is using the MoA doctrine much more frequently, more explicitly and to a greater number of legal categories, the HRC can reach, using parallel legal doctrines, similar outcomes in many, if not most analogous cases. This finding supports my general claim that MoA or a MoA-like doctrines may be inherent to international adjudication, and are explained by the limited capacity of international courts to engage in fact-finding (effectiveness) and their need to respect certain choices made at the domestic level, especially by democratic institutions (legitimacy). What’s more, the disparity in the relative prominence of MoA or MoA-like doctrines in the work of both sets of institutions may be primarily related not to an ideological chasm between Committee members and ECtHR judges with relation to the theoretical validity of the doctrine’s underlying rationales, but rather to the practical applicability of these rationales to the circumstances confronting the two institutions: the ECtHR engages more often than the HRC with democratically elected decision-makers, who are better situated than the Court—not only in theory, but also in practice—to apply international human rights law. This justifies confidence in the quality of domestic decision, and consequently, considerable willingness by the Court to grant deference to domestic authorities. By contrast, the state parties to the ICCPR represent for the HRC a ‘mixed bag’: they comprise established democracies as well as States without functioning and credible law-applying institutions. As a result, the HRC is understandably reluctant to develop a general doctrine of legal deference (outside the specific area of application of law to facts, where the Committee encounters real capacity problems due to its limited access to facts). Finally, the very intrusiveness of the jurisdiction of the ECtHR—its existence as an ultimate court of review invested with legally binding powers—may require it to signal to domestic decision-makers that it is willing to accord them deference and respect their regulatory space in order to avoid antagonism and backlash.76 The HRC, on the other hand, is operating in a very different legal environment: it enjoys jurisdiction under the Optional Protocol only over some of the State parties to the ICCPR (about two-thirds of the membership), and, more significantly, does not enjoy the power to issue binding decisions. Thus, whereas the HRC may feel reluctant to embrace a legal doctrine that would further dilute the legal effects of the weak set of decisions it issues, and which is not even mentioned in its constitutive instruments, the ECtHR can afford to indulge in a ‘victor’s generosity’ and offer a MoA as a concession designed to calm those democratic decision-makers and constituencies who are apprehensive about the broad scope of its powers. Footnotes 1 See eg Paolo G Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ 97 (2003) AJIL 38, 61 (‘Considered by some to be the cornerstone of the Convention's respect for the diversity of the nations within the Council of Europe’s human rights system’). 2 See eg Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (OUP 2012) 13; Ximena Fuentas, ‘International Law-making in the Field of Sustainable Development: The Unequal Competition between Development and the Environment’ in Nico Schrijver and Friedl Weiss (eds), International Law and Sustainable Development: Principles and Practice (Martinus Nijhoff Publishers 2004) 7, 32; Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edn, OUP 2014) 29. 3 Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ 16 (2005) EJIL 907. 4 Greece v UK (the Cyprus case), App No 176/56, 1958-I D&R 181, at para 318 (‘it was a matter of course that the Government concerned was in a better position than the Commission to blot: all relevant facts and to weigh in each case the different possible lines of action for the purpose of countering an existing threat to the life of the nation. Without going as far as to recognise a presumption in favour of the necessity of measures taken by the Government, the Commission was of the opinion, nevertheless, that a certain margin of appreciation mast be conceded to the Government’). 5 Denmark v Greece (the Greek case), App No 3321/67, 12 YB Eur Conv HR (1969) 1, at para 114 (The Sub-Commission considers that in the present case the burden lies upon the respondent Government to show that the conditions justifying measures of derogation under article 15 have been and continue to be met, due regard being had to the “margin of appreciation” which, according to the constant jurisprudence of the Commission, the Government has in judging the situation in Greece’). 6 Lawless v Ireland, App No 332/57, 1 Eur Ct HR (ser B), at 56 (1960–61), at para 90 (opinion of 5 commissioners, supported by two others)(‘This being so, and having regard to the high responsibility which a Government has to its people to protect them against any threat to the life of the nation, it is evident that a certain discretion - a certain margin of appreciation - must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measures derogating from its normal obligations under the Convention’). 7 Affaires Linguistiques Belges, App No 1474/62, 1 Eur Ct HR (Ser B)(1965–67), at para 401 (‘Ces dispositions, et notamment l’article 2, premier phrase, du protocole, laissent aux Etats un certain pouvoir discrétionnaire quant aux mesures à adopter en vue d’assurer la jouissance de droits qu’elles garantissent.’). 8 Lawless v Ireland (No 3), App No 332/57, Eur Ct HR (Ser A) No 3 (1961), at para 28 (‘whereas the existence at the time of a “public emergency threatening the life of the nation”, was reasonably deduced by the Irish Government from a combination of several factors’). 9 Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), App No 1474/62, Eur Ct HR (Ser A) No 6 (1968), at para B10 (‘In attempting to find out in a given case, whether or not there has been an arbitrary distinction, the Court cannot disregard those legal and factual features which characterize the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention’). 10 HUDOC search performed on 2 April 2016. 11 Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, art 1, ETS 213. 12 See eg Handyside v UK, App No 5493/72, Eur Ct HR (Ser A) No 24 (1976) at para 48 (‘By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them’). 13 See eg Goodwin v UK, App No 28957/95, 2002-VI Eur Ct HR at para 85 (‘In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation’). Note however, that Bjorge and Legg cite three principal justifications—expertise, diversity and democratic legitimation. Eirik Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (OUP 2015) 180–81; Legg (n 2) at 7. 14 See eg. Aksoy v Turkey, App No 21987/93, 1996-VI Eur Ct HR at para 68 (‘exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation’). 15 See eg Jahn v Germany, App 46720/99, judgment of 22 January 2004, at para 80 (‘the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation’). 16 Camenzind v Switzerland, App No 21353/93, 1997-VIII Eur Ct HR at para 45 (‘notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, the authorities are empowered under national law to order and effect searches without a judicial warrant. If individuals are to be protected from arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal framework and very strict limits on such powers are called for’). 17 X, Y and Z v UK, App No 21830/93, 1997-II Eur Ct HR at para 44 (‘Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation’). 18 See eg Chahal v UK, App 22414/93, 1996-V Eur Ct HR at para 96 (‘[I]n cases such as the present the Court’s examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 (art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe’). 19 See eg Chahal, ibid; Saadi v Italy, App No 37201/06, judgment of 28 February 2008, at para 128. But see Legg (n 2) at 207–10 (suggesting that the margin of appreciation doctrine may have some role to play in assessing what would constitute inhuman or degrading treatment in any given society). 20 See eg Leander v Sweden, App No 9248/81, Eur Ct HR (Ser A) No 116 (1987), at para 59 (‘In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the present case, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one’). 21 A, B and C v Ireland, App 25579/05, judgment of 16 December 2010, at para 233 (‘There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention’). Significantly, the Court held that the margin of appreciation afforded to Ireland is not narrowed by the emerging European consensus on the access to abortion services. ibid, at para 236. 22 See eg Weller v Hungary, App 44399/05, ECtHR judgment of 31 March 2009, at para 28 (‘Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved’); L and V v Austria, App No 39392/98, 36 EHRR 55 (2003), at para 49–50. 23 See eg Helen Keller and Alec Stone Sweet, ‘The Reception of the ECHR in National Legal Orders’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (OUP 2008) 3, 6; Shai Dothan, ‘The Optimal Use of Comparative Law’ 43 (2014) Denv J Int'l L & Pol'y 21, 26; Laurence R Helfer, ‘Consensus. Coherence and the European Convention on Human Rights’ 26 (1993) Cornell Int’l LJ 133, 143; Alec Stone Sweet, ‘The European Convention on Human Rights and National Constitutional Reordering’ 33 (2012) Cardozo L Rev 1859, 1863. 24 See eg Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 198. 25 See eg Alessandra Pera, ‘The “Margin of Appreciation” in ECHR Case-law as a Boundary Line to Legal Transplants’ in Sue Farran and others (eds), The Diffusion of Law: The Movement of Laws and Norms Around the World (Routledge 2016) 133. 26 See eg See eg R St J MacDonald, ‘The Margin of Appreciation’ in R St J MacDonald and others (eds), The European System of Protection of Human Rights (Martinus Nijhoff 1993) 83, 123; Yakuta Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (CUP 2013) 62, 63; Yuval Shany, Assessing the Effectiveness of International Courts (OUP 2014) 156. 27 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (CUP 2015) 133; Shai Dothan, ‘Three Interpretive Constraints on the European Court of Human Rights’ in Machiko Kanetake and Andre Nollkaemper (eds), The Rule of Law at the National and International Levels: Contestations and Deference (Hart Publishing 2016) 227, 229; Stefan Sottiaux and Gerhard van der Schyff, ‘Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights’ 31 (2008) Hastings Int'l & Comp L Rev 115, 135–36. 28 See eg Dragoljub Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights’ 42 (2009) Creighton L. Rev. Creighton L Rev 361, 394; Gerald Neuman, ‘Subsidiarity’ in Dinah Shelton (ed), Oxford Handbook of International Human Rights Law (OUP 2013) 360, 376. 29 See eg See also Fionnuala Ni-Aolain and Oren Gross, Law in Times of Crisis: Emergency Powers in Theory and Practice (CUP 2006) 279 (‘Brogan constitutes a prime example of a court finding that a democratic government is making a good faith effort to preserve human rights, and de facto giving the state a wider margin of appreciation than those states with lesser reputation for rights enforcement’). For a general discussion of the application of the margin of appreciation doctrine to post-communist member states, see James A Sweeney, ‘Divergence and Diversity in Post-Communist European Human Rights Cases’ 21 (2005) Conn J Int'l L 1. 30 See also Neuman (n 24) at 375. 31 There are, however, many other scenarios involving the application of facts to law, in which the ECtHR afforded member States a margin of appreciation. See eg Refah Partisi v Turkey, App/ 41340/98, 2003-II Eur Ct HR 269, at para 132 (‘In view of the fact that these plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to Contracting States, may reasonably be considered to have met a “pressing social need”’); Mouvement raëlien suisse v Switzerland, App No 16354/06, judgment of 13 July 2012, at para 59 (necessity of restricting publicity for information promulgated by a sect); Schalk v Austria, App No 30141/04, judgment of 24 June 2010, at para 96 (whether the situation of same-sex and other-sex couples requires similar or different treatment). 32 Lawless (n 8). 33 A v UK, App 3455/05, Judgment of 19 February 2009. 34 See ibid at para 173 (‘By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities’); Aksoy v Turkey, App No 21987/93, 1996-VI Eur CtHR 68, at para 68. See also Lawless (n 8) at para 28 (‘whereas the Court, after an examination, find this to be the case; whereas the existence at the time of a “public emergency threatening the life of the nation”, was reasonably deduced by the Irish Government from a combination of several factors’). 35 See A v UK (n 33) at para 173 (‘The Court reiterates that it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency’). See also Ireland v UK, App 5310/71, Eur Ct HR (Ser A) No 25, at para 207. 36 See eg See also Brannigan v UK, App No 14553/89, Eur Ct HR (Ser A) No 258-B (1993); Marshall v UK, App No 41571/98, Decision of 10 July 2001. See also Nicolas AJ Croquet, ‘The European Court of Human Rights' Norm-Creation and Norm-Limiting Processes: Resolving a Normative Tension’ 17 (2011) Colum J Eur L 307, 342 (‘Judicial recognition of this broad margin of appreciation has now become well entrenched in the ECtHR's Article 15 case law. The Court has never found a State to be in breach of this substantive condition’). The Court has also accepted the necessity and proportionality of the vast majority of derogating measures. Eva Brems, ‘The Margin of Appreciation Doctrine of the European Court of Human Rights: Accommodating Diversity Within Europe’ in David P Forsythe and Patrcie C McMahon (eds), Human Rights and Diversity: Area Studies Revisited (University of Nebraska Press 2003) 81, 98. It may also be noted that the Commission has taken a tougher approach vis-à-vis the art. 15 declaration made by Greece in 1967, in connection with the coup d’etat executed by a group of army colonels. The Greek case, App No 3321/67, 969 Yearbook of the European Convention on Human Rights 1. 37 Handyside (n 12). 38 See eg ibid at para. 52 (‘The Court thus allows that the fundamental aim of the judgment of 29 October 1971, applying the 1959/1964 Acts, was the protection of the morals of the young, a legitimate purpose under Article 10 para. 2’). 39 See eg Dudgeon v UK, App 7525/76, Eur Ct HR (Ser A) No 45, at para 54 (‘the Court’s task is to determine on the basis of the aforesaid principles whether the reasons purporting to justify the “interference” in question are relevant and sufficient under Article 8 para. 2’); Von Hannover v Germany (No 2), App No 40660/08, Judgment of 7 February 2012, at paras 106–07; Lambert v France, App No 46043/14, judgment of 5 June 2015, at para 148. 40 See eg Kudreviçius v Lithuania, App No 37553/05, judgment of 15 October 2015, at para 169 (‘The Court further sees no reason to doubt the domestic courts’ findings to the effect that the applicants were aware that the moving of the demonstration from the authorised locations onto the highways and the parking of the tractors on the carriageway of the Kaunas-Marijampolė-Suvalkai highway would provoke a major disruption to traffic … It is not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them’). 41 See eg Handyside (n 12) at para 57 (‘The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society’). 42 See eg Şahin v Turkey, App No 44774/98, 2005-XI Eur Ct HR 173, at para 116 (‘Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court (see paragraph 39 above), which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn’); A, B and C (n 21), at paras 239–40 (‘From the lengthy, complex and sensitive debate in Ireland… as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well-being reasons but allows women, in the first and second applicants’ position who wish to have an abortion for those reasons (see paragraphs 123-30 above), the option of lawfully travelling to another State to do so … It is with this choice that the first and second applicants take issue. However, it is equally to this choice that the broad margin of appreciation centrally applies’); Frette v France, App No 36515/97, 2002-I Eur Ct HR 156, at para 41 (‘Although most of the Contracting States do not expressly prohibit homosexuals from adopting where single persons may adopt, it is not possible to find in the legal and social orders of the Contracting States uniform principles on these social issues on which opinions within a democratic society may reasonably differ widely. The Court considers it quite natural that the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy a wide margin of appreciation when they are asked to make rulings on such matters’). 43 Vo v France, App No 53924/00, judgment of 8 July 2004. See also Evans v UK, App No 6339/05, 2007-I Eur Ct HR 200, at para 54. 44 Vo ibid at para 82 (‘It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere’). 45 See eg Frédéric Megrét, ‘International Human Rights and Global Pluralism: A Research Agenda’ in René Provost and Coleen Shepard (eds), Dialogues on Human Rights and Legal Pluralism (Springer 2013) 69, 79; Jingxia Shi, Free Trade and Cultural Diversity in International Law (Hart Publishing 2013) 48. 46 Note however, that both the Inter-American and African regional human rights courts have issued in the past a few decisions which follow the logic of the MoA doctrine. See eg Castaneda Gutman v Mexico, Judgment of the I/A CHR of 6 August 2008, para 204 (affirming the freedom of the State to choose an election mechanism that would meeting its compelling social needs); Tanganyika Law Society v Tanganyika, ACHPR Judgment of 14 June 2013, paras 112–13 (accepting that States have discretion in regulating freedom of association but considering that a duty to belong to a political party in order to participate in elections exceeds that discretion). 47 See eg PR Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Ashgate Publishing 1998) 14; Hellen Keller and Leena Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in Hellen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 116, 125; Scott P Sheeran, ‘Reconceptualizing States of Emergency under International Human Rights Law: Theory, Legal Doctrine, and Politics’ 34 (2013) Mich J Int'l L 491, 539; Benedict Kingsbury, ‘Is the Proliferation of International Courts and Tribunals a Systemic Problem?’, 31 (1999) NYU J Int'l L & Pol 679, 695. 48 See eg Sarah Joseph and Melissa Casten, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, 2013) 625. 49 See eg Julie Debeljak, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’ in Tom Campbell and others (eds), Protecting Human Rights: Instruments and Institutions (OUP 2003) 135, 135; Frédéric Megrét, ‘International Human Rights Law’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (Edward Elgar 2011) 199, 213–14; Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals: the Problem of Compliance (CUP 2014) 32. 50 See eg Kate Nash, The Political Sociology of Human Rights (CUP 2015) 42. 51 See eg Report on follow-up to the concluding observations of the Human Rights Committee, 8 December 2014, UN Doc CCPR/C/112/2 (2014). 52 Legg (n 2) 74. See also Paul M Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (CUP 2005) 186–87; Eva Brems, Human Rights: Universality and Diversity (Martinus Nijhoff 2001) 382. The two cases mentioned most often in these regard are: Hertzberg et al v Finland, Comm No 61/1979, UN Doc CCPR/C/OP/1 at 124 (1985), at para 10.5 (‘The Committee feels, however, that the information before it is sufficient to formulate its views on the communication. It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities’) and Borzov v Estonia, Comm No 1136/2002, UN Doc CCPR/C/81/D/1136/2002 (2004), at paras 7.3–7.4 (‘While the Committee cannot leave it to the unfettered discretion of a State party whether reasons related to national security existed in an individual case, it recognizes that its own role in reviewing the existence and relevance of such considerations will depend on the circumstances of the case and the relevant provision of the Covenant… Noting, furthermore, that the role of the State party's courts in reviewing administrative decisions, including those decided with reference to national security, appears to entail genuine substantive review, the Committee concludes that the author has not made out his case that the decision taken by the State party with respect to the author was not based on reasonable and objective grounds’). 53 James Crawford, ‘Preface’ in Arai-Takahashi (n 24) at ix. 54 Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add 1326 (2004) at para 12. 55 RG v Denmark, Comm No 2351/2014, Views adopted on 1 April 2015, at paras 7.4–7.6. See also X v Norway, Comm No 2474/2014, Views adopted on 5 November 2015, at para 7.5; FM v Canada, Comm No 2284/2013, Views adopted on 5 November 2015, at paras 9.5–9.6. 56 Van Meurs v Netherlands, Comm No 215/1986, Views adopted on 13 July 1990, at para 7.1. See also Arenz v Germany, Comm No 1138/2002, Views adopted on 24 March 2004, at para 8.6. (‘The issue before the Committee is whether the State party violated the authors’ rights under the Covenant in that its courts gave priority to the principle of party autonomy, over their wish to be members in a political party that did not accept them due to their membership in another organization of ideological nature. The Committee recalls its constant jurisprudence that it is not a fourth instance competent to reevaluate findings of fact or reevaluate the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. The Committee considers that the authors have failed to substantiate, for purposes of admissibility, that the conduct of the courts of the State party would have amounted to arbitrariness or a denial of justice. Therefore, the communication is inadmissible under article 2 of the Optional Protocol’). 57 See eg X v Denmark, Comm No 2389/2014, Views adopted on 22 July 2015, (dissenting opinion by Shany et al); Shakeel v Canada, Comm No 1881/2009, Views adopted on 30 September 2013 (dissenting opinion by Shany et al and dissenting opinion by Iwasawa) (criticizing the overriding of domestic authorities decision on deportation); Haraldsson v Iceland, Comm No 1306/2004, Views adopted on 24 October 2007, (dissenting opinion by Rodley; dissenting opinion by Iwasawa) (criticizing the overriding of national authorities decision to differentiate between fishermen due to change in economic policy). 58 cf ECtHR Rule of Court, Annex to the Rules1 (concerning investigations), 7 July 2003. This may change following the adoption of a new oral hearings procedure by the HRC. Human Rights Committee concludes 118th session, <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20835&LangID=E> accessed 25 February 2017. 59 For a criticism from within the ECtHR, see Vo (n 43), Separate Opinion of Judge Rozakis et al. 60 See eg Sunday Times v UK (No 1), App No 6538/74, Eur Ct HR (Ser A) No 30 (1979), at para 59 (‘Precisely the same cannot be said of the far more objective notion of the “authority” of the judiciary. The domestic law and practice of the Contracting States reveal a fairly substantial measure of common ground in this area. This is reflected in a number of provisions of the Convention, including Article 6 (art. 6), which have no equivalent as far as “morals” are concerned. Accordingly, here a more extensive European supervision corresponds to a less discretionary power of appreciation’). 61 See eg Mellet v Ireland, Comm No 2324/2013, Views adopted on 31 March 2016, paras 7.2–7.4 (noting the State party’s claim that Irish law reflects the choice of the Irish electorate, but holding that the law, as applied to the author constitute cruel, inhuman and degrading treatment, arbitrary interference with the right to privacy and a prohibited act of discrimination). 62 See eg Allen Buchanan, Human Rights, Legitimacy and the Use of Force (OUP 2010) 72. 63 International Covenant on Civil and Political Rights, 16 December 1966, preamble, 999 UNTS 171. 64 cf US v Carolene Products Co, 304 US 144, 152 (1938) ( state laws must have ‘some rational basis’); Craig v Boren, 429 US 190 210–211 (1976) (Powell J, concurring)(‘the relatively deferential “rational basis” standard of review normally applied takes on a sharper focus when we address a gender-based classification’). 65 Faurisson v France, Comm No 550/1993, Views adopted on 8 November 1996. 66 See eg Jeroen Temperman, Religious Hatred and International Law: The Prohibition of ncitement to Violence or Discrimination (CUP 2016) 119 (no jurisprudential precedent for the Committee ordering a state to introduce anti-incitement legislation). It is interesting to note that in General Comment 34, the Committee seemed to have deviated from the Faurisson holding, asserting the general priority of free speech over protecting the rights and reputation of others. Human Rights Committee, General Comment 34, Article 19: Freedoms of Opinion and Expression, UN Doc CCPR/C/GC/34 (2011), at para 49 (‘Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.116 The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events’). 67 See eg Castañeda v Mexico, Comm No 2022/2012, Views adopted on 18 July 2013, at para 7.7 (‘[T]he denial of access to the requested information, in the form of physical ballot papers, was intended to guarantee the integrity of the electoral process in a democratic society. This measure was a proportionate restriction by the State party necessary for the protection of public order in accordance with the law and to give effect to electors’ rights, as set forth in article 25 of the Covenant. In the circumstances, the Committee therefore considers that the facts before it do not reveal a violation of article 19, paragraph 2, of the Covenant’). 68 Singh Bhinder v Canada, Comm No 208/1986, Views adopted on 9 November 1989, at para 6.2 (‘If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant’). 69 Prince v South Africa, Comm No 1474/2006, Views adopted on 31 October 2007, at para 7.3 (‘It further notes the State party’s conclusion that the law in question was designed to protect public safety, order, health, morals or the fundamental rights and freedoms of others, based on the harmful effects of cannabis, and that an exemption allowing a system of importation, transportation and distribution to Rastafarians may constitute a threat to the public at large, were any of the cannabis enter into general circulation. Under these circumstances the Committee cannot conclude that the prohibition of the possession and use of drugs, without any exemption for specific religious groups, is not proportionate and necessary to achieve this purpose.’). 70 Paez v Colombia, Comm 195/1985, Views adopted on 12 July 1990, at para 5.9 (‘Article 19 protects, inter alia, the right of freedom of expression and of opinion. This will usually cover the freedom of teachers to teach their subjects in accordance with their own views, without interference. However, in the particular circumstances of the case, the special relationship between Church and State in Colombia, exemplified by the applicable Concordat, the Committee finds that the requirement, by the Church, that religion be taught in a certain way does not violate article 19’). 71 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 72 cf Human Rights Committee Rapporteurs, Draft General Comment 36, UN Doc CCPR/C/GC/R.36/Rev.2 (2015) at para 8 (‘Unlike the American Convention on Human Rights, the Covenant does not explicitly refer to the rights of the fetus. In the absence of subsequent agreements regarding the inclusion of the rights of the fetus within article 6 and in the absence of uniform State practice which establishes such subsequent agreements, the Committee cannot assume that article 6 imposes on State parties an obligation to recognize the right to life of the fetus. Still, States parties may choose to adopt measures designed to protect the fetus, [including through recognition of its capacity to exercise rights], provided that such [recognition does/measures do] not result in violation of other rights under the Covenant, including the right to life of pregnant women and the prohibition against exposing them to cruel, inhuman and degrading treatment or punishment.’). cf Parrillo v Italy, App No 46470/11, at para 174 (‘whilst it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity’). 73 See eg Human Rights Committee General Comment 28—art 3: The Equality of Rights between Men and Women, UN Doc CCPR/C/21/Rev.1/Add.10 (2000), at para 10 (according to the Committee, any regulatory measure should not jeopardize the life and health of pregnant women and their other basic rights). 74 Joslin v New Zealand, Comm No 902/1999, Views adopted on 17 July 2002, at para 8.2. See also individual opinion of Lallah and Scheinin (‘We found no difficulty in joining the Committee's consensus on the interpretation of the right to marry under article 23, paragraph 2. This provision entails an obligation for States to recognize as marriage the union of one adult man and one adult woman who wish to marry each other. The provision in no way limits the liberty of States, pursuant to article 5, paragraph 2, to recognize, in the form of marriage or in some other comparable form, the companionship between two men or between two women. However, no support can be drawn from this provision for practices that violate the human rights or dignity of individuals, such as child marriages or forced marriages’). 75 For a related discussion, see Dzehtsiarou (n 27) at 149. 76 Frédéric Megrét, ‘Nature of Obligations’ in Daniel Moekli and others (eds), International Human Rights Law ( OUP 2010) 96, 104. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee

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Abstract

ABSTRACT The present article seeks to explore the possibility that a gap exists between the perceived rejection of the margin of appreciation (MoA) doctrine by the UN Human Rights Committee (HRC), and its actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of similar deference-granting doctrines. Section 2 of the article surveys the application of the MoA doctrine in the case law of the European Court of Human Rights (ECtHR), identifying three analytically separate prongs—application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Section 3 then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Section 4 concludes. 1. Introduction The margin of appreciation (MoA) doctrine is often thought about as a human rights law doctrine, which has been tailored for the special institutional needs and political characteristics of one regional system—the Council of Europe’s European Convention on Human Rights (ECHR)1—and thus has no general application outside that particular regional context. Indeed, none of the other international human rights bodies have explicitly embraced the MoA doctrine; some have, in fact, rejected it, as a guiding doctrine, explicitly or implicitly.2 This state of affairs stand in marked contrast with the view I have expounded in a previous article, in which I suggested that granting states some margin of appreciation should be, and often is, an integral part of international adjudication, thus calling for the development of a general MoA doctrine in international law.3 The present article seeks to explore the possibility that a gap exists between the perceived rejection of the MoA doctrine by all international human rights bodies, other than the European Court of Human Rights (ECtHR), and their actual practice of employing substitute, MoA-like approaches. The existence of such a gap might be explained by the proposition that some aspects of the MoA doctrine are an indispensable element of international adjudication involving state conduct. It may also suggest that there are policy considerations which lead some international human rights bodies not to embrace explicitly the MoA doctrine or to downplay in their jurisprudence the prominence of pro-deference considerations. I will focus in this article on the engagement with MoA and MoA-like doctrines of one international human rights bodies with whose work I am intimately familiar—the UN Human Rights Committee (HRC). Arguably, a close look into the work of the Committee may suggest that, contrary to appearances, the Committee is not averse to certain modalities of the MoA doctrine, and that it has developed in its case law approaches that are somewhat analogous to those found in the jurisprudence of the ECtHR. Although the scope of the examination offered here is rather narrow—covering in a non-exhaustive manner the practices of only two international human rights bodies (HRC and ECtHR)—my findings may have relevance for other international adjudication bodies as well. It would require, however, further research into the practices and policies of other international human rights bodies in order to fully appreciate the role of MoA and MoA-like doctrines in international human rights law. Following these introductory remarks, Section 2 of the article surveys the application of the MoA doctrine in the case law of the ECtHR, identifying three analytically separate prongs—application of law to facts, balancing of norms in the course of law-application and balancing of norms in the course of law interpretation. Section 3 then moves to discuss analogous legal moves taken by the HRC, while noting the remaining differences between the approaches of the two bodies. Section 4 concludes. 2. Application of the Margin of Appreciation Doctrine in the Jurisprudence of the European Court of Human Rights The proposition that the MoA doctrine has played a key role in the development of the jurisprudence of ECtHR is hard to argue against. The early decisions by the European Commission of Human Rights to afford Member States a margin of discretion or a margin of appreciation in state of emergency cases (the Cyprus case,4 the Greek Case,5Lawless6) and in realizing certain Convention rights (the Belgian Linguistics case),7 were endorsed by ECtHR judgments, which implied that a certain degree of deference is due to state authorities in decisions on the application of Convention,8 and suggested that the Convention machinery ought to be regarded as subsidiary to legal procedures available at the domestic level.9 From the mid-1970s onwards, the MoA doctrine has been explicitly relied upon by the Court to justify grant of deference to Member States in interpreting and applying the terms of Convention, and it has been invoked to date in almost 2000 judgments of the Court.10 The doctrine has also been incorporated into Protocol 15 to the Convention (not yet in force).11 The MoA doctrine has been justified by the ECtHR on the basis of two principal policy rationales: (i) the better position rationale—according to which national institutions are better situated than Convention institutions to evaluate local conditions;12 and (ii) the related subsidiarity rationale—according to which decisions purporting to strike a balance between competing rights and interests, which entail a choice between competing social values, should be taken by the democratically elected representatives of the relevant member State.13 Furthermore, the breadth of the margin of discretion retained by national authorities has been linked by the Court to a multiplicity of factors, including the nature of the rights in question,14 the importance of the policy aims pursued by national authorities,15 the availability of adequate procedural safeguards at the domestic level,16 and the degree of European consensus on the interpretation and application of the right in question.17 Hence, for example, no margin of appreciation has been afforded by the ECtHR to member States with respect to the interpretation and application of Article 3 of the European Convention (prohibition of torture and ill-treatment), which the Court has described as fundamental and absolute in nature.18 Thus, the Court has opted in situations giving rise to a risk of torture or ill-treatment for a ‘rigorous’ standard of review.19 At the same time, member States were afforded a relatively broad margin of appreciation when invoking limitations to Convention rights in national security cases20 and in circumstances in which invoked limitations corresponded to deeply held moral convictions.21 Furthermore, the scope of the MoA afforded by the ECtHR to the member States has not been fixed in time. According to the Court’s jurisprudence, an emerging European consensus on the specific interpretation or manner of application of Convention rights may lead over time to a gradual narrowing of the margin of appreciation afforded to the member States.22 In doing that, the Court, in effect, ‘locks-in’ the new consensus and prods those remaining member States that retain contrary practices to conform with the rest.23 Given the centrality of the MoA doctrine to the jurisprudence of the ECtHR, it is not surprising that it has attracted much interest and critical analysis, which discussed the normative implications of the MoA doctrine as well as its realpolitik aspects, which may influence the effectiveness of the Strasbourg system: the doctrine has allowed the Court to increase the acceptance of its judgments through developing its jurisprudence in an incremental manner,24 and to facilitate the gradual emergence of consensus among member States.25 It also offered the Court a face-saving way out from politically-charged and value-laden confrontations with recalcitrant States.26 Critiques of the ECtHR have pointed out, however, that due to the open-ended nature of the criteria for applying the MoA doctrine, the Court enjoys extremely broad discretion in determining when and how to apply it.27 Furthermore, several commentators have claimed that the Court has been using the doctrine, at times, in order to avoid the need to adopt inconvenient decisions on controversial questions (such as the right to life of the unborn).28 In any event, the effects of excluding some Convention rights from field of application of the MoA doctrine, while applying the doctrine to other Convention rights, has allowed the Court to exercise de facto varying levels of judicial supervision over different member States. Whereas the Court affords considerable leeway to complicated norm-balancing problems arising out of the interpretation and application of the ECHR, which typically occupy the established democracies of Western Europe, it has tended to apply a more rigorous standard of review when examining allegations of serious violations of basic rights by the newer and more fragile democracies of Eastern Europe.29 A close look at the case law of the ECtHR suggests, however, that the MoA doctrine actually comprises a series of deferential moves adopted by the Court vis-à-vis national authorities:30 (i) application of law to facts; (ii) norm-balancing in law-application; (iii) norm-balancing in law-interpretation. While these moves are often intertwined in their application, they are analytically separate and often have a different justificatory logic and can be explained by way of reference to different policy rationales. The application of the MoA doctrine to declarations of state of emergency exemplify the doctrine’s ‘application of law to facts’ prong.31 The paradigmatic question, which the ECtHR confronted in cases such as Lawless32 and A v UK,33 was whether the threats to public safety or order posed by a certain security challenge or set of challenges amounted to a ‘public emergency threatening the life of the nation’, which could justify a derogation from the ECHR, pursuant to Article 15. This is a question involving a fact-based risk-assessment, and the Court has held on more than one occasion that national authorities have a broad MoA in making such factual determinations by reason of their proximity to local conditions,34 which confer on them a superior fact finding capacity, and because of their responsibility for maintaining law and order (ie the aforementioned better position and subsidiarity rationales).35 Furthermore, it appears as if the significant weight assigned to the policy aims underlying the declaration of a state of emergency has pushed the Court to confer on the relevant member States a broad MoA in evaluating the relevant facts, accepting to date all invocations of states of emergency as compatible with Article 15.36 The Handyside case37 represents the second paradigmatic application of the MoA doctrine by the ECtHR—norm balancing in the course of law-application. Cases falling within this category typically involve the invocation of a limitation on a Convention right by a member State (for example, in the Handyside case itself, the UK has invoked one of the enumerated exceptions to Article 10 of the ECHR—curbing of speech in order to protect public morals). Such an invocation requires both a finding of fact (that is, whether the factual situation relied upon falls within a permissible exception to a Convention right),38 but also a balancing of competing norms as part of the required proportionality analysis (that is whether reliance on the exception is normatively justified on the basis of a cost–benefit analysis involving the juxtaposition of opposing values).39 In these norm-balancing cases, a MoA was afforded to the national authorities not only by reasons of their superior fact finding capacity, but also—and arguably, more importantly—because of their ability to express the prevailing normative preferences and value choices of their polity. Such preferences and choices may be highly contextual and explain the specific impact on society of certain measures adopted or averted (eg whether due to the factual conditions and sensitivities prevailing in the State in question, demonstrations may cause a serious disruption of public order);40 but they may also be more abstract in nature, and relate to the weight that the relevant polity ascribes to the competing values implicated in norm-balancing (eg the exceptionally high value placed by a particular society on the need to protect children from obscenities).41 In this latter case, invocation of the MoA doctrine appears to be based primarily on the subsidiarity rationale; and the upshot of its application by the ECtHR is pluralism in norm-balancing during law-application, accommodating the divergent local preferences of different democratic societies.42 The Vo case43 represents the third prong of the MoA doctrine—norm-balancing in the course of law-interpretation. In the particular circumstances of that case, the ECtHR took the position that, in the absence of consensus on the value to be assigned to the right to life of an unborn foetus, the Court would grant a MoA to member States in determining the scope of application of Article 2 of the Convention.44 In conceding that certain ECHR rights may be afforded to individuals residing in certain member States (whose national authorities construe broadly a certain Convention right), but not to individuals residing in other member States (whose national authorities construe the same right narrowly), the Court seems to have gone one step beyond the Handyside balancing in law-application approach. In Handyside, the scope of the relevant rights and limitations remained constant for all member states, whereas MoA was afforded to the national authorities in connection with the concrete act of balancing between them in the course of the application of the relevant rights. By contrast, in Vo, the Court accepted that there may be variations in the interpretation of the scope of the primary right in question (the right to life). Arguably, affording MoA in determining the scope of ECHR provisions constitutes a strong version of subsidiarity and norm-pluralism, expressing the idea that the contents of human rights norms could diverge across societies should correspond to their specific conceptions of the good life.45 Separating analytically between the different legal moves undertaken by the ECtHR pursuant to the MoA doctrine and identifying their distinct rationales may help us in the next phase of the inquiry: examination of whether some version of the MoA doctrine has been applied, completely or partially, by the HRC. This is indeed the topic of Section 3 of this article. 3. The Human Rights Committee’s application the Margin of Appreciation Doctrine It is widely presumed that the MoA doctrine has failed to take root in human rights treaty systems other than that of the ECHR,46 and that it has been specifically rejected by the HRC.47 This difference between the approach taken by the ECtHR and HRC is often explained by reference to the greater challenges of legal diversity and democratic legitimacy confronting the universal human rights law system: Given the large number of State parties to the International Covenant on Civil and Political Rights (ICCPR) (which is 3.5 times greater than the membership of the ECHR), and their considerable geographical, political and cultural diversity, it has been asserted that an application of a MoA doctrine in the work of the Committee might have rendered hopeless its task of developing universally applicable standards, amenable to meaningful monitoring by centralized bodies.48 In terms of diversity, the universal system of human rights protection is indeed different from the European system, whose key member States share a similar culture, history and political tradition. The similar historical experiences and worldviews of many European States serve as a constraint on the diversity of legal positions and practices that is likely to be identified across the European region, and facilitates the harmonization of regional normative standards, notwithstanding the retention of a certain degree of pluralism through application of the MoA doctrine. No similar constraints on legal diversity and no similar conditions for harmonization exist, however, at the global level in which the HRC operates. Furthermore, the trustworthiness of non-democracies in faithfully applying international human rights law is more limited than that of democratic states that have institutions of governance and constituencies strongly committed to the ideology of the international human rights movement49 (sometimes, willing to go beyond universal human rights law standards).50 Whereas the ECtHR applies the Convention predominantly to democratic States with strong rule of law traditions the HRC monitors the human rights practices of many non-democratic States with relatively weak legal institutions, whose record of compliance Covenant is checkered at best (as is made apparent throughout the process of periodic review of State reports submitted to the Committee).51 Thus, whereas the ECtHR may find it reasonable to adopt a principle of subsidiarity, leaving national decision-makers with considerable flexibility in adjusting human rights norms to local conditions, the HRC is expected to insist on closely scrutinizing the manner of application of the Covenant by the State parties. But did the HRC really reject the MoA doctrine? It has been noted by Andrew Legg and other commentators that the Committee has, in a handful of cases, resorted in its Views to the terminology of ‘margins’ and ‘discretion’, resulting in the grant of deference to decisions taken at the national level.52 But even more significantly, it appears that in many more cases the Committee de facto accorded state parties a considerable degree of deference without formulating a legal doctrine, such as the MoA doctrine, that would acknowledge and justify such grant of deference. On the basis of these implicit grants of deference, James Crawford observed that the Committee has been ‘speaking silently’ the language of the MoA doctrine.53 Analysing the relevant case law of the HRC in accordance with the three prongs of the MoA doctrine as it was developed by the ECtHR may help us to evaluate claims about the actual MoA-friendly practices of the HRC and to assess the actual gaps in law and practice between the two institutions. A. Application of Law to Facts With relation to the first prong of the MoA doctrine—application of law to facts—it appears as if the default position of the HRC, when assessing whether a given set of facts or domestic laws meets a legal standard found in the Covenant (or in the jurisprudence of the Committee, which has interpreted it), is deferential to the domestic decision-makers who have previously reviewed such facts or domestic laws. For example, in extradition or deportation cases, the legal standard employed by the Committee to evaluate the lawfulness of the removal of the relevant individual from the state whose decision to remove is being challenged, involves appreciation of the applied factual risk assessment—whether or not ‘there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed’.54 In dozens of cases in which national authorities have applied this risk assessment standard (or an equivalent standard), the Committee refused to intervene in the decision of national authorities, citing in some of these cases a concern that it should not act as a Court of Fourth Instance. For example, in the recent RG v Denmark, the Committee has held: The Committee further recalls its jurisprudence that considerable weight should be given to the assessment conducted by the State party, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice, and that it is generally for organs of States parties to the Covenant to review or evaluate facts and evidence in order to determine whether such a risk exists … . Although the authors challenged the Board’s composition and the quality of the translations and the interpretation of statements presented to it, their claims in that regard are of a general nature and do not establish that evaluation of their asylum application by the Danish authorities was clearly arbitrary or amounted to a denial of justice.55 A similar deferential approach to fact-finding by domestic authorities can be found in other cases decided by the HRC, outside the field of immigration or refugee law. For instance, in van Meurs v Netherlands, a case involving alleged procedural flaws in domestic judicial proceedings, the Committee alluded to a general policy of granting deference to national judicial proceedings with respect to assessing the quality of domestic legal procedures: With respect to the author's claims that the hearing of his case was not conducted fairly, the Committee refers to its constant jurisprudence that it is not a "fourth instance" competent to reevaluate findings of fact or to review the application of domestic legislation. It is generally for the appellate courts of States parties to the Covenant to evaluate the facts and the evidence in a particular case unless it can be ascertained that the proceedings before the domestic courts were clearly arbitrary or amounted to a denial of justice.56 To be sure, the Committee has not always been consistent in applying the said standard of deference (though it has never renounced explicitly its application). This has led to the issuance of numerous dissenting opinions of Committee members, who have pointed out to inconsistencies and gaps between the Committee’s deferential rhetoric and actual practice.57 Still, there appears to be considerable support for the proposition that the HRC normally applies a deferential approach towards national authorities, when the latter engage in application of legal standards found in the Covenant to the facts before them (or to domestic laws). Actually, the logic of the better position rationale, which underlies the ECtHR’s invocation of the MoA doctrine to the application of law to facts, may operate with even greater force for the HRC: Unlike the ECtHR, the HRC does not have currently the capacity to conduct oral hearings when reviewing communications under the Optional Protocol and has no independent fact-finding capacity.58 Moreover, the ‘not a fourth instance’ approach taken by the Committee in these cases echoes the ECtHR’s subsidiarity approach in that it questions the propriety of closely reviewing issues already decided at the domestic level by a competent decision-maker. B. Low-Level Scrutiny As noted above, however, the MoA doctrine has been invoked by the ECtHR not only with regard to application of the Convention to facts or domestic laws, but also with regard to norm-balancing in the course of the interpretation and application of the Convention. In this latter context, the Court was willing to take the view that the relationship between competing values involved in the application of Convention rights and even the contents of these rights may vary for different member States, in accordance with the relative weight they assign to various social values. The position taken by the ECtHR raises, however, in my eyes, a number of theoretical and practical problems.59 First, it is less than clear that national authorities are better situated than an international human rights body to interpret international norms or even to balance, in the course of law-application, between competing values. To the contrary, international human rights bodies typically have greater expertise than national courts in the interpretation and application of international law. They also have greater access to the laws, practices and value-preferences of numerous jurisdictions (partly because of the nationally diverse composition of international human rights bodies), and such a comparative perspective enables them to critically evaluate the necessity and proportionality of law-application measures taken by a domestic decision-maker in ways which may be unavailable to domestic courts.60 Secondly, while the subsidiarity rationale may support the proposition that decisions relating to important value-laden questions such as whether or not to allow for abortion or euthanasia should be taken by democratically elected bodies, there may be countervailing considerations relating to the need to protect vulnerable individuals and groups adversely affected by prevailing and oppressive social and moral norms and beliefs from the ‘tyranny of the majority’. Arguably, an international human rights body should not give effect to laws and practices, which deprive individuals and minority groups of their protected rights, even if they are endorsed by the majority in the relevant polity.61 It is these doubts as to whether domestic organs are better situated than international human rights bodies, epistemically and institutionally, to determine the contents of human rights norms and to assign proper weight to competing values involved in their application, that may have led the HRC to refrain from developing a general MoA-like doctrine, which would afford deference to domestic decision-makers in relation to norm-balancing. These general concerns about the propriety of deferring to norm-balancing decisions of domestic decision-makers are further compounded by the aforementioned concerns of the HRC about the trustworthiness of the domestic institutions of some of its State parties, who do not have a strong human rights record or a democratic rule of law tradition, and by fears of loss of the legitimacy which the HRC derives from the notion that the human rights it interprets and applies are universal in nature.62 In particular, it is difficult for a global body, such as the HRC, which interprets and applies a treaty premised on the ‘inherent dignity’ and ‘equal and inalienable rights of all members of the human family’63 to accept that the contents of the international obligations of the state parties to the ICCPR could be different for each State party by reason of its own value choices and priorities. Yet, despite these doubts and concerns, one may find in the jurisprudence of the HRC in relation to cases involving norm-balancing legal measures that preserve a certain margin for domestic decision-makers, without using the language of the MoA doctrine or other language suggesting deference to domestic normative preferences. Arguably, such a ‘silent’ resort to deference by the Committee can be explained by a combination of principled concerns about comparative institutional advantages and subsidiarity, on the one hand, and realpolitik concerns about State compliance and challenge to authority, on the other hand. First, in a number of cases involving the application of limitation clauses under the ICCPR, the Committee has accepted without much discussion the position taken by State parties on the social necessity for limiting Covenant rights, without engaging in a detailed analysis of the propriety of the norm-balancing that had been undertaken at the domestic level. Such an approach may be analogized to the doctrine of minimum scrutiny (or ‘rational basis’) available in US constitutional law, according to which a relatively light burden is imposed on government agencies seeking to justify difference in treatment of individuals not belonging to ‘suspect classes’.64 In particular, the Committee never held that other State parties that would engage in a similar exercise of norm-balancing would be unable to reach different outcomes. It thus left the door open for the possibility that, like under the MoA doctrine, different State parties could adopt different Covenant-consistent norm-balancing measures. One possible example for application of low-level scrutiny by the Committee over balancing of norms by a state party is the Faurrison v France case, which concerned a French law banning holocaust denial. In its Views, the Committee accepted without much discussion the position taken by France, according to which limiting speech in order to protect the rights and reputation of others serves, in principle, a legitimate purpose under the Covenant: [T]he Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author's guilt was based on his following two statements: "… I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers … I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication". His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author's case by the French courts, is in compliance with the provisions of the Covenant.65 Note that the Committee did not actually scrutinize whether the decision by the French authorities to prioritize one set of norms (rights and reputation of others) over another (free speech) reflected a legally justified hierarchy of values, nor did it consider whether or not other State parties may embrace a different balancing test. These omissions may imply an implicit acceptance on the part of Committee that a variety of balancing outcomes relating to ‘memory laws’ may be deemed compatible with the Covenant.66 Other examples of a less-than-rigorous analysis by the Committee of norm-balancing conducted by State parties can be found in cases relating to limits on disclosure of materials relating to election outcomes in order to protect the integrity of the election process,67 the refusal to exempt a Sikh worker from the need to wear a hard hat for safety reasons, notwithstanding the offence to his religious sensitivities caused by the safety measure,68 the prohibition of the use of cannabis in religious rastafari ceremonies,69 and limits on the manner in which religion is taught in public school.70 In all of these cases, the resort to low-level of scrutiny has left unturned the norm-balancing decisions of the relevant state authorities. C. Restrictive Interpretation Another interpretive move taken by the HRC, leading to the de facto creation of a regulatory space in which State parties may perform norm-balancing and value choices, involves a restrictive interpretation of the Covenant in the face of lack of normative consensus. Arguably, in sensitive matters over which no specific agreement has been reached when the Covenant was negotiated, nor in the intervening years, and where state practice continues to diverge, article 31(3)(a)-(b) of the Vienna Convention on the Law of Treaties71 may support a narrow interpretation of the legal obligations assumed by the state parties. Hence, for example, one possible way to understand the position of the Committee on the controversial subject of the regulation of abortion under the Covenant is that the lack of consensus among state parties on whether Article 6 (the right to life) covers unborn foetuses and the failure to include an explicit reference to foetuses during the negotiating process, implies that the Covenant should be read as protecting the lives of human beings only after their birth.72 Thus, in abortion cases, only the lives of pregnant women appear to be protected by the Covenant, and state parties are left with a certain regulatory space to develop policies relating to the protection of unborn foetuses, in accordance with their value choices (as long as such policies do not infringe or unjustifiably limit the protected rights of pregnant women).73 Arguably, the HRC has opted for a similarly narrow interpretation of a Covenant right in the Joslin v New Zealand case, in which the Committee rejected the claim that the Covenant requires States parties to offer same-sex marriage, resulting in the preservation of considerable regulatory space for states in this field, which may be informed by their value preferences: Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term ‘men and women’, rather than ‘every human being’, ‘everyone’ and ‘all persons’. Use of the term ‘men and women’, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.74 The upshot of this approach is that the HRC can consider lack of consensus as a reason for affording state parties flexibility in the interpretation and application of the Covenant. Such an outcome is not very different than the outcome reached by the ECtHR under the MoA doctrine (where lack of consensus is a factor pushing in the direction of according states parties greater normative latitude); and it could be supported on the basis of general principles of treaty interpretation, which may consider lack of consensus as an element in negating the existence of a relevant rule of international custom against which treaties need to be interpreted,75 or lack of agreement by the State parties regarding interpretation of relevant provisions of the Covenant. At the same time, given the greater difficulty in establishing consensus at the global level, due to the great diversity across the State parties and the wide divergence in their attitudes towards the desirability of deepening international human rights standards, it is not surprising that the Committee alludes only rarely to the lack of existence of international consensus as an explicit constraint upon its normative work. Indeed, excessive reliance on actual consensus might dilute the human rights protections already offered by the widely-ratified Covenant. To be sure, the fact that the HRC may resort to low-level scrutiny or narrow interpretation of the scope of Covenant rights does not mean that it will choose to do so every time it is confronted by an instance of norm-balancing. Like with the ECtHR, the application of these de facto deference granting measures is expected to be, and actually appears to be inconsistent or even haphazard at times. Further research on the relevant practice, policies and rhetoric used by the HRC is warranted. Note however, that such further research is going to be complicated by lack of transparency: whereas the ECtHR, when invoking the MoA doctrine, is clearly signalling its intention to grant deference to domestic decision-makers, the HRC’s intention of doing so might need to be surmised from opaque decisions, which may be laconic in nature or embrace a cautious approach for reasons unrelated to MoA-like considerations. 4. Concluding Remarks Ultimately, the differences between the approach taken by the ECtHR and HRC with respect to the grant of deference in the application of legal standards involving evaluation of facts and domestic law, and in affording state parties a regulatory space in relation to controversial questions of law, policy and morality, are less marked than may appear at first look: both institutions clearly accord deference to domestic authorities in certain cases (application of law to facts), and explicitly or implicitly preserve their regulatory space in other cases (norm-balancing). Although the ECtHR is using the MoA doctrine much more frequently, more explicitly and to a greater number of legal categories, the HRC can reach, using parallel legal doctrines, similar outcomes in many, if not most analogous cases. This finding supports my general claim that MoA or a MoA-like doctrines may be inherent to international adjudication, and are explained by the limited capacity of international courts to engage in fact-finding (effectiveness) and their need to respect certain choices made at the domestic level, especially by democratic institutions (legitimacy). What’s more, the disparity in the relative prominence of MoA or MoA-like doctrines in the work of both sets of institutions may be primarily related not to an ideological chasm between Committee members and ECtHR judges with relation to the theoretical validity of the doctrine’s underlying rationales, but rather to the practical applicability of these rationales to the circumstances confronting the two institutions: the ECtHR engages more often than the HRC with democratically elected decision-makers, who are better situated than the Court—not only in theory, but also in practice—to apply international human rights law. This justifies confidence in the quality of domestic decision, and consequently, considerable willingness by the Court to grant deference to domestic authorities. By contrast, the state parties to the ICCPR represent for the HRC a ‘mixed bag’: they comprise established democracies as well as States without functioning and credible law-applying institutions. As a result, the HRC is understandably reluctant to develop a general doctrine of legal deference (outside the specific area of application of law to facts, where the Committee encounters real capacity problems due to its limited access to facts). Finally, the very intrusiveness of the jurisdiction of the ECtHR—its existence as an ultimate court of review invested with legally binding powers—may require it to signal to domestic decision-makers that it is willing to accord them deference and respect their regulatory space in order to avoid antagonism and backlash.76 The HRC, on the other hand, is operating in a very different legal environment: it enjoys jurisdiction under the Optional Protocol only over some of the State parties to the ICCPR (about two-thirds of the membership), and, more significantly, does not enjoy the power to issue binding decisions. Thus, whereas the HRC may feel reluctant to embrace a legal doctrine that would further dilute the legal effects of the weak set of decisions it issues, and which is not even mentioned in its constitutive instruments, the ECtHR can afford to indulge in a ‘victor’s generosity’ and offer a MoA as a concession designed to calm those democratic decision-makers and constituencies who are apprehensive about the broad scope of its powers. Footnotes 1 See eg Paolo G Carozza, ‘Subsidiarity as a Structural Principle of International Human Rights Law’ 97 (2003) AJIL 38, 61 (‘Considered by some to be the cornerstone of the Convention's respect for the diversity of the nations within the Council of Europe’s human rights system’). 2 See eg Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (OUP 2012) 13; Ximena Fuentas, ‘International Law-making in the Field of Sustainable Development: The Unequal Competition between Development and the Environment’ in Nico Schrijver and Friedl Weiss (eds), International Law and Sustainable Development: Principles and Practice (Martinus Nijhoff Publishers 2004) 7, 32; Sarah Joseph and others, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edn, OUP 2014) 29. 3 Yuval Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ 16 (2005) EJIL 907. 4 Greece v UK (the Cyprus case), App No 176/56, 1958-I D&R 181, at para 318 (‘it was a matter of course that the Government concerned was in a better position than the Commission to blot: all relevant facts and to weigh in each case the different possible lines of action for the purpose of countering an existing threat to the life of the nation. Without going as far as to recognise a presumption in favour of the necessity of measures taken by the Government, the Commission was of the opinion, nevertheless, that a certain margin of appreciation mast be conceded to the Government’). 5 Denmark v Greece (the Greek case), App No 3321/67, 12 YB Eur Conv HR (1969) 1, at para 114 (The Sub-Commission considers that in the present case the burden lies upon the respondent Government to show that the conditions justifying measures of derogation under article 15 have been and continue to be met, due regard being had to the “margin of appreciation” which, according to the constant jurisprudence of the Commission, the Government has in judging the situation in Greece’). 6 Lawless v Ireland, App No 332/57, 1 Eur Ct HR (ser B), at 56 (1960–61), at para 90 (opinion of 5 commissioners, supported by two others)(‘This being so, and having regard to the high responsibility which a Government has to its people to protect them against any threat to the life of the nation, it is evident that a certain discretion - a certain margin of appreciation - must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measures derogating from its normal obligations under the Convention’). 7 Affaires Linguistiques Belges, App No 1474/62, 1 Eur Ct HR (Ser B)(1965–67), at para 401 (‘Ces dispositions, et notamment l’article 2, premier phrase, du protocole, laissent aux Etats un certain pouvoir discrétionnaire quant aux mesures à adopter en vue d’assurer la jouissance de droits qu’elles garantissent.’). 8 Lawless v Ireland (No 3), App No 332/57, Eur Ct HR (Ser A) No 3 (1961), at para 28 (‘whereas the existence at the time of a “public emergency threatening the life of the nation”, was reasonably deduced by the Irish Government from a combination of several factors’). 9 Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), App No 1474/62, Eur Ct HR (Ser A) No 6 (1968), at para B10 (‘In attempting to find out in a given case, whether or not there has been an arbitrary distinction, the Court cannot disregard those legal and factual features which characterize the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention. The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention’). 10 HUDOC search performed on 2 April 2016. 11 Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, art 1, ETS 213. 12 See eg Handyside v UK, App No 5493/72, Eur Ct HR (Ser A) No 24 (1976) at para 48 (‘By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the “necessity” of a “restriction” or “penalty” intended to meet them’). 13 See eg Goodwin v UK, App No 28957/95, 2002-VI Eur Ct HR at para 85 (‘In accordance with the principle of subsidiarity, it is indeed primarily for the Contracting States to decide on the measures necessary to secure Convention rights within their jurisdiction and, in resolving within their domestic legal systems the practical problems created by the legal recognition of post-operative gender status, the Contracting States must enjoy a wide margin of appreciation’). Note however, that Bjorge and Legg cite three principal justifications—expertise, diversity and democratic legitimation. Eirik Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (OUP 2015) 180–81; Legg (n 2) at 7. 14 See eg. Aksoy v Turkey, App No 21987/93, 1996-VI Eur Ct HR at para 68 (‘exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation’). 15 See eg Jahn v Germany, App 46720/99, judgment of 22 January 2004, at para 80 (‘the notion of “public interest” is necessarily extensive. In particular, the decision to enact laws expropriating property will commonly involve consideration of political, economic and social issues. The Court, finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, will respect the legislature's judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation exercising this supervision, the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation and the circumstances leading to, and the duration of, the emergency situation’). 16 Camenzind v Switzerland, App No 21353/93, 1997-VIII Eur Ct HR at para 45 (‘notwithstanding the margin of appreciation which the Court recognises the Contracting States have in this sphere, it must be particularly vigilant where, as in the present case, the authorities are empowered under national law to order and effect searches without a judicial warrant. If individuals are to be protected from arbitrary interference by the authorities with the rights guaranteed under Article 8, a legal framework and very strict limits on such powers are called for’). 17 X, Y and Z v UK, App No 21830/93, 1997-II Eur Ct HR at para 44 (‘Since the issues in the case, therefore, touch on areas where there is little common ground amongst the member States of the Council of Europe and, generally speaking, the law appears to be in a transitional stage, the respondent State must be afforded a wide margin of appreciation’). 18 See eg Chahal v UK, App 22414/93, 1996-V Eur Ct HR at para 96 (‘[I]n cases such as the present the Court’s examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one, in view of the absolute character of Article 3 (art. 3) and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe’). 19 See eg Chahal, ibid; Saadi v Italy, App No 37201/06, judgment of 28 February 2008, at para 128. But see Legg (n 2) at 207–10 (suggesting that the margin of appreciation doctrine may have some role to play in assessing what would constitute inhuman or degrading treatment in any given society). 20 See eg Leander v Sweden, App No 9248/81, Eur Ct HR (Ser A) No 116 (1987), at para 59 (‘In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the present case, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one’). 21 A, B and C v Ireland, App 25579/05, judgment of 16 December 2010, at para 233 (‘There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish State in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under Article 8 of the Convention’). Significantly, the Court held that the margin of appreciation afforded to Ireland is not narrowed by the emerging European consensus on the access to abortion services. ibid, at para 236. 22 See eg Weller v Hungary, App 44399/05, ECtHR judgment of 31 March 2009, at para 28 (‘Since the Convention is first and foremost a system for the protection of human rights, the Court must however have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved’); L and V v Austria, App No 39392/98, 36 EHRR 55 (2003), at para 49–50. 23 See eg Helen Keller and Alec Stone Sweet, ‘The Reception of the ECHR in National Legal Orders’ in Helen Keller and Alec Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems (OUP 2008) 3, 6; Shai Dothan, ‘The Optimal Use of Comparative Law’ 43 (2014) Denv J Int'l L & Pol'y 21, 26; Laurence R Helfer, ‘Consensus. Coherence and the European Convention on Human Rights’ 26 (1993) Cornell Int’l LJ 133, 143; Alec Stone Sweet, ‘The European Convention on Human Rights and National Constitutional Reordering’ 33 (2012) Cardozo L Rev 1859, 1863. 24 See eg Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 198. 25 See eg Alessandra Pera, ‘The “Margin of Appreciation” in ECHR Case-law as a Boundary Line to Legal Transplants’ in Sue Farran and others (eds), The Diffusion of Law: The Movement of Laws and Norms Around the World (Routledge 2016) 133. 26 See eg See eg R St J MacDonald, ‘The Margin of Appreciation’ in R St J MacDonald and others (eds), The European System of Protection of Human Rights (Martinus Nijhoff 1993) 83, 123; Yakuta Arai-Takahashi, ‘The Margin of Appreciation Doctrine: A Theoretical Analysis of Strasbourg’s Variable Geometry’ in Andreas Føllesdal and others (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context (CUP 2013) 62, 63; Yuval Shany, Assessing the Effectiveness of International Courts (OUP 2014) 156. 27 Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (CUP 2015) 133; Shai Dothan, ‘Three Interpretive Constraints on the European Court of Human Rights’ in Machiko Kanetake and Andre Nollkaemper (eds), The Rule of Law at the National and International Levels: Contestations and Deference (Hart Publishing 2016) 227, 229; Stefan Sottiaux and Gerhard van der Schyff, ‘Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights’ 31 (2008) Hastings Int'l & Comp L Rev 115, 135–36. 28 See eg Dragoljub Popovic, ‘Prevailing of Judicial Activism over Self-Restraint in the Jurisprudence of the European Court of Human Rights’ 42 (2009) Creighton L. Rev. Creighton L Rev 361, 394; Gerald Neuman, ‘Subsidiarity’ in Dinah Shelton (ed), Oxford Handbook of International Human Rights Law (OUP 2013) 360, 376. 29 See eg See also Fionnuala Ni-Aolain and Oren Gross, Law in Times of Crisis: Emergency Powers in Theory and Practice (CUP 2006) 279 (‘Brogan constitutes a prime example of a court finding that a democratic government is making a good faith effort to preserve human rights, and de facto giving the state a wider margin of appreciation than those states with lesser reputation for rights enforcement’). For a general discussion of the application of the margin of appreciation doctrine to post-communist member states, see James A Sweeney, ‘Divergence and Diversity in Post-Communist European Human Rights Cases’ 21 (2005) Conn J Int'l L 1. 30 See also Neuman (n 24) at 375. 31 There are, however, many other scenarios involving the application of facts to law, in which the ECtHR afforded member States a margin of appreciation. See eg Refah Partisi v Turkey, App/ 41340/98, 2003-II Eur Ct HR 269, at para 132 (‘In view of the fact that these plans were incompatible with the concept of a “democratic society” and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to Contracting States, may reasonably be considered to have met a “pressing social need”’); Mouvement raëlien suisse v Switzerland, App No 16354/06, judgment of 13 July 2012, at para 59 (necessity of restricting publicity for information promulgated by a sect); Schalk v Austria, App No 30141/04, judgment of 24 June 2010, at para 96 (whether the situation of same-sex and other-sex couples requires similar or different treatment). 32 Lawless (n 8). 33 A v UK, App 3455/05, Judgment of 19 February 2009. 34 See ibid at para 173 (‘By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle better placed than the international judge to decide both on the presence of such an emergency and on the nature and scope of the derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities’); Aksoy v Turkey, App No 21987/93, 1996-VI Eur CtHR 68, at para 68. See also Lawless (n 8) at para 28 (‘whereas the Court, after an examination, find this to be the case; whereas the existence at the time of a “public emergency threatening the life of the nation”, was reasonably deduced by the Irish Government from a combination of several factors’). 35 See A v UK (n 33) at para 173 (‘The Court reiterates that it falls to each Contracting State, with its responsibility for “the life of [its] nation”, to determine whether that life is threatened by a “public emergency” and, if so, how far it is necessary to go in attempting to overcome the emergency’). See also Ireland v UK, App 5310/71, Eur Ct HR (Ser A) No 25, at para 207. 36 See eg See also Brannigan v UK, App No 14553/89, Eur Ct HR (Ser A) No 258-B (1993); Marshall v UK, App No 41571/98, Decision of 10 July 2001. See also Nicolas AJ Croquet, ‘The European Court of Human Rights' Norm-Creation and Norm-Limiting Processes: Resolving a Normative Tension’ 17 (2011) Colum J Eur L 307, 342 (‘Judicial recognition of this broad margin of appreciation has now become well entrenched in the ECtHR's Article 15 case law. The Court has never found a State to be in breach of this substantive condition’). The Court has also accepted the necessity and proportionality of the vast majority of derogating measures. Eva Brems, ‘The Margin of Appreciation Doctrine of the European Court of Human Rights: Accommodating Diversity Within Europe’ in David P Forsythe and Patrcie C McMahon (eds), Human Rights and Diversity: Area Studies Revisited (University of Nebraska Press 2003) 81, 98. It may also be noted that the Commission has taken a tougher approach vis-à-vis the art. 15 declaration made by Greece in 1967, in connection with the coup d’etat executed by a group of army colonels. The Greek case, App No 3321/67, 969 Yearbook of the European Convention on Human Rights 1. 37 Handyside (n 12). 38 See eg ibid at para. 52 (‘The Court thus allows that the fundamental aim of the judgment of 29 October 1971, applying the 1959/1964 Acts, was the protection of the morals of the young, a legitimate purpose under Article 10 para. 2’). 39 See eg Dudgeon v UK, App 7525/76, Eur Ct HR (Ser A) No 45, at para 54 (‘the Court’s task is to determine on the basis of the aforesaid principles whether the reasons purporting to justify the “interference” in question are relevant and sufficient under Article 8 para. 2’); Von Hannover v Germany (No 2), App No 40660/08, Judgment of 7 February 2012, at paras 106–07; Lambert v France, App No 46043/14, judgment of 5 June 2015, at para 148. 40 See eg Kudreviçius v Lithuania, App No 37553/05, judgment of 15 October 2015, at para 169 (‘The Court further sees no reason to doubt the domestic courts’ findings to the effect that the applicants were aware that the moving of the demonstration from the authorised locations onto the highways and the parking of the tractors on the carriageway of the Kaunas-Marijampolė-Suvalkai highway would provoke a major disruption to traffic … It is not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them’). 41 See eg Handyside (n 12) at para 57 (‘The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society’). 42 See eg Şahin v Turkey, App No 44774/98, 2005-XI Eur Ct HR 173, at para 116 (‘Having regard to the above background, it is the principle of secularism, as elucidated by the Constitutional Court (see paragraph 39 above), which is the paramount consideration underlying the ban on the wearing of religious symbols in universities. In such a context, where the values of pluralism, respect for the rights of others and, in particular, equality before the law of men and women are being taught and applied in practice, it is understandable that the relevant authorities should wish to preserve the secular nature of the institution concerned and so consider it contrary to such values to allow religious attire, including, as in the present case, the Islamic headscarf, to be worn’); A, B and C (n 21), at paras 239–40 (‘From the lengthy, complex and sensitive debate in Ireland… as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well-being reasons but allows women, in the first and second applicants’ position who wish to have an abortion for those reasons (see paragraphs 123-30 above), the option of lawfully travelling to another State to do so … It is with this choice that the first and second applicants take issue. However, it is equally to this choice that the broad margin of appreciation centrally applies’); Frette v France, App No 36515/97, 2002-I Eur Ct HR 156, at para 41 (‘Although most of the Contracting States do not expressly prohibit homosexuals from adopting where single persons may adopt, it is not possible to find in the legal and social orders of the Contracting States uniform principles on these social issues on which opinions within a democratic society may reasonably differ widely. The Court considers it quite natural that the national authorities, whose duty it is in a democratic society also to consider, within the limits of their jurisdiction, the interests of society as a whole, should enjoy a wide margin of appreciation when they are asked to make rulings on such matters’). 43 Vo v France, App No 53924/00, judgment of 8 July 2004. See also Evans v UK, App No 6339/05, 2007-I Eur Ct HR 200, at para 54. 44 Vo ibid at para 82 (‘It follows that the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that States should enjoy in this sphere’). 45 See eg Frédéric Megrét, ‘International Human Rights and Global Pluralism: A Research Agenda’ in René Provost and Coleen Shepard (eds), Dialogues on Human Rights and Legal Pluralism (Springer 2013) 69, 79; Jingxia Shi, Free Trade and Cultural Diversity in International Law (Hart Publishing 2013) 48. 46 Note however, that both the Inter-American and African regional human rights courts have issued in the past a few decisions which follow the logic of the MoA doctrine. See eg Castaneda Gutman v Mexico, Judgment of the I/A CHR of 6 August 2008, para 204 (affirming the freedom of the State to choose an election mechanism that would meeting its compelling social needs); Tanganyika Law Society v Tanganyika, ACHPR Judgment of 14 June 2013, paras 112–13 (accepting that States have discretion in regulating freedom of association but considering that a duty to belong to a political party in order to participate in elections exceeds that discretion). 47 See eg PR Ghandhi, The Human Rights Committee and the Right of Individual Communication: Law and Practice (Ashgate Publishing 1998) 14; Hellen Keller and Leena Grover, ‘General Comments of the Human Rights Committee and their Legitimacy’ in Hellen Keller and Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 116, 125; Scott P Sheeran, ‘Reconceptualizing States of Emergency under International Human Rights Law: Theory, Legal Doctrine, and Politics’ 34 (2013) Mich J Int'l L 491, 539; Benedict Kingsbury, ‘Is the Proliferation of International Courts and Tribunals a Systemic Problem?’, 31 (1999) NYU J Int'l L & Pol 679, 695. 48 See eg Sarah Joseph and Melissa Casten, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd edn, 2013) 625. 49 See eg Julie Debeljak, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’ in Tom Campbell and others (eds), Protecting Human Rights: Instruments and Institutions (OUP 2003) 135, 135; Frédéric Megrét, ‘International Human Rights Law’ in Alexander Orakhelashvili (ed), Research Handbook on the Theory and History of International Law (Edward Elgar 2011) 199, 213–14; Courtney Hillebrecht, Domestic Politics and International Human Rights Tribunals: the Problem of Compliance (CUP 2014) 32. 50 See eg Kate Nash, The Political Sociology of Human Rights (CUP 2015) 42. 51 See eg Report on follow-up to the concluding observations of the Human Rights Committee, 8 December 2014, UN Doc CCPR/C/112/2 (2014). 52 Legg (n 2) 74. See also Paul M Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (CUP 2005) 186–87; Eva Brems, Human Rights: Universality and Diversity (Martinus Nijhoff 2001) 382. The two cases mentioned most often in these regard are: Hertzberg et al v Finland, Comm No 61/1979, UN Doc CCPR/C/OP/1 at 124 (1985), at para 10.5 (‘The Committee feels, however, that the information before it is sufficient to formulate its views on the communication. It has to be noted, first, that public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities’) and Borzov v Estonia, Comm No 1136/2002, UN Doc CCPR/C/81/D/1136/2002 (2004), at paras 7.3–7.4 (‘While the Committee cannot leave it to the unfettered discretion of a State party whether reasons related to national security existed in an individual case, it recognizes that its own role in reviewing the existence and relevance of such considerations will depend on the circumstances of the case and the relevant provision of the Covenant… Noting, furthermore, that the role of the State party's courts in reviewing administrative decisions, including those decided with reference to national security, appears to entail genuine substantive review, the Committee concludes that the author has not made out his case that the decision taken by the State party with respect to the author was not based on reasonable and objective grounds’). 53 James Crawford, ‘Preface’ in Arai-Takahashi (n 24) at ix. 54 Human Rights Committee, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add 1326 (2004) at para 12. 55 RG v Denmark, Comm No 2351/2014, Views adopted on 1 April 2015, at paras 7.4–7.6. See also X v Norway, Comm No 2474/2014, Views adopted on 5 November 2015, at para 7.5; FM v Canada, Comm No 2284/2013, Views adopted on 5 November 2015, at paras 9.5–9.6. 56 Van Meurs v Netherlands, Comm No 215/1986, Views adopted on 13 July 1990, at para 7.1. See also Arenz v Germany, Comm No 1138/2002, Views adopted on 24 March 2004, at para 8.6. (‘The issue before the Committee is whether the State party violated the authors’ rights under the Covenant in that its courts gave priority to the principle of party autonomy, over their wish to be members in a political party that did not accept them due to their membership in another organization of ideological nature. The Committee recalls its constant jurisprudence that it is not a fourth instance competent to reevaluate findings of fact or reevaluate the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice. The Committee considers that the authors have failed to substantiate, for purposes of admissibility, that the conduct of the courts of the State party would have amounted to arbitrariness or a denial of justice. Therefore, the communication is inadmissible under article 2 of the Optional Protocol’). 57 See eg X v Denmark, Comm No 2389/2014, Views adopted on 22 July 2015, (dissenting opinion by Shany et al); Shakeel v Canada, Comm No 1881/2009, Views adopted on 30 September 2013 (dissenting opinion by Shany et al and dissenting opinion by Iwasawa) (criticizing the overriding of domestic authorities decision on deportation); Haraldsson v Iceland, Comm No 1306/2004, Views adopted on 24 October 2007, (dissenting opinion by Rodley; dissenting opinion by Iwasawa) (criticizing the overriding of national authorities decision to differentiate between fishermen due to change in economic policy). 58 cf ECtHR Rule of Court, Annex to the Rules1 (concerning investigations), 7 July 2003. This may change following the adoption of a new oral hearings procedure by the HRC. Human Rights Committee concludes 118th session, <http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20835&LangID=E> accessed 25 February 2017. 59 For a criticism from within the ECtHR, see Vo (n 43), Separate Opinion of Judge Rozakis et al. 60 See eg Sunday Times v UK (No 1), App No 6538/74, Eur Ct HR (Ser A) No 30 (1979), at para 59 (‘Precisely the same cannot be said of the far more objective notion of the “authority” of the judiciary. The domestic law and practice of the Contracting States reveal a fairly substantial measure of common ground in this area. This is reflected in a number of provisions of the Convention, including Article 6 (art. 6), which have no equivalent as far as “morals” are concerned. Accordingly, here a more extensive European supervision corresponds to a less discretionary power of appreciation’). 61 See eg Mellet v Ireland, Comm No 2324/2013, Views adopted on 31 March 2016, paras 7.2–7.4 (noting the State party’s claim that Irish law reflects the choice of the Irish electorate, but holding that the law, as applied to the author constitute cruel, inhuman and degrading treatment, arbitrary interference with the right to privacy and a prohibited act of discrimination). 62 See eg Allen Buchanan, Human Rights, Legitimacy and the Use of Force (OUP 2010) 72. 63 International Covenant on Civil and Political Rights, 16 December 1966, preamble, 999 UNTS 171. 64 cf US v Carolene Products Co, 304 US 144, 152 (1938) ( state laws must have ‘some rational basis’); Craig v Boren, 429 US 190 210–211 (1976) (Powell J, concurring)(‘the relatively deferential “rational basis” standard of review normally applied takes on a sharper focus when we address a gender-based classification’). 65 Faurisson v France, Comm No 550/1993, Views adopted on 8 November 1996. 66 See eg Jeroen Temperman, Religious Hatred and International Law: The Prohibition of ncitement to Violence or Discrimination (CUP 2016) 119 (no jurisprudential precedent for the Committee ordering a state to introduce anti-incitement legislation). It is interesting to note that in General Comment 34, the Committee seemed to have deviated from the Faurisson holding, asserting the general priority of free speech over protecting the rights and reputation of others. Human Rights Committee, General Comment 34, Article 19: Freedoms of Opinion and Expression, UN Doc CCPR/C/GC/34 (2011), at para 49 (‘Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression.116 The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events’). 67 See eg Castañeda v Mexico, Comm No 2022/2012, Views adopted on 18 July 2013, at para 7.7 (‘[T]he denial of access to the requested information, in the form of physical ballot papers, was intended to guarantee the integrity of the electoral process in a democratic society. This measure was a proportionate restriction by the State party necessary for the protection of public order in accordance with the law and to give effect to electors’ rights, as set forth in article 25 of the Covenant. In the circumstances, the Committee therefore considers that the facts before it do not reveal a violation of article 19, paragraph 2, of the Covenant’). 68 Singh Bhinder v Canada, Comm No 208/1986, Views adopted on 9 November 1989, at para 6.2 (‘If the requirement that a hard hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard hat be worn is seen as a discrimination de facto against persons of the Sikh religion under article 26, then, applying criteria now well established in the jurisprudence of the Committee, the legislation requiring that workers in federal employment be protected from injury and electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards objective purposes that are compatible with the Covenant’). 69 Prince v South Africa, Comm No 1474/2006, Views adopted on 31 October 2007, at para 7.3 (‘It further notes the State party’s conclusion that the law in question was designed to protect public safety, order, health, morals or the fundamental rights and freedoms of others, based on the harmful effects of cannabis, and that an exemption allowing a system of importation, transportation and distribution to Rastafarians may constitute a threat to the public at large, were any of the cannabis enter into general circulation. Under these circumstances the Committee cannot conclude that the prohibition of the possession and use of drugs, without any exemption for specific religious groups, is not proportionate and necessary to achieve this purpose.’). 70 Paez v Colombia, Comm 195/1985, Views adopted on 12 July 1990, at para 5.9 (‘Article 19 protects, inter alia, the right of freedom of expression and of opinion. This will usually cover the freedom of teachers to teach their subjects in accordance with their own views, without interference. However, in the particular circumstances of the case, the special relationship between Church and State in Colombia, exemplified by the applicable Concordat, the Committee finds that the requirement, by the Church, that religion be taught in a certain way does not violate article 19’). 71 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331. 72 cf Human Rights Committee Rapporteurs, Draft General Comment 36, UN Doc CCPR/C/GC/R.36/Rev.2 (2015) at para 8 (‘Unlike the American Convention on Human Rights, the Covenant does not explicitly refer to the rights of the fetus. In the absence of subsequent agreements regarding the inclusion of the rights of the fetus within article 6 and in the absence of uniform State practice which establishes such subsequent agreements, the Committee cannot assume that article 6 imposes on State parties an obligation to recognize the right to life of the fetus. Still, States parties may choose to adopt measures designed to protect the fetus, [including through recognition of its capacity to exercise rights], provided that such [recognition does/measures do] not result in violation of other rights under the Covenant, including the right to life of pregnant women and the prohibition against exposing them to cruel, inhuman and degrading treatment or punishment.’). cf Parrillo v Italy, App No 46470/11, at para 174 (‘whilst it is of course important, the right invoked by the applicant to donate embryos to scientific research is not one of the core rights attracting the protection of Article 8 of the Convention as it does not concern a particularly important aspect of the applicant’s existence and identity’). 73 See eg Human Rights Committee General Comment 28—art 3: The Equality of Rights between Men and Women, UN Doc CCPR/C/21/Rev.1/Add.10 (2000), at para 10 (according to the Committee, any regulatory measure should not jeopardize the life and health of pregnant women and their other basic rights). 74 Joslin v New Zealand, Comm No 902/1999, Views adopted on 17 July 2002, at para 8.2. See also individual opinion of Lallah and Scheinin (‘We found no difficulty in joining the Committee's consensus on the interpretation of the right to marry under article 23, paragraph 2. This provision entails an obligation for States to recognize as marriage the union of one adult man and one adult woman who wish to marry each other. The provision in no way limits the liberty of States, pursuant to article 5, paragraph 2, to recognize, in the form of marriage or in some other comparable form, the companionship between two men or between two women. However, no support can be drawn from this provision for practices that violate the human rights or dignity of individuals, such as child marriages or forced marriages’). 75 For a related discussion, see Dzehtsiarou (n 27) at 149. 76 Frédéric Megrét, ‘Nature of Obligations’ in Daniel Moekli and others (eds), International Human Rights Law ( OUP 2010) 96, 104. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Jul 31, 2017

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