The Interpretation of the ECHR as a Living Instrument: Demise of the Margin of Appreciation Doctrine?
Rachael Ita, PhD Candidate, University of Derby
The interpretation of the European Convention on Human Rights (‘the Convention’) as a ‘living instrument’ by the European Court of Human Rights (‘the Court’) means that the standards of the Convention are not to be regarded as static, rather they should be reflective of social changes.[i] Although there are differing views as to whether this is a good approach,[ii] the Court has continued to adopt an evolutive interpretation of the Convention’s guarantees.[iii] This paper examines the question whether evolutive interpretation of the Convention has led to the demise of another interpretative tool: the margin of appreciation afforded to state parties. Selected case law from the Court will be examined and the theory of restricted correlativity as advocated by Joseph Raz, which highlights the dynamic nature of duties, will be explored in order to show justification for retention of these two interpretative tools in the jurisprudence of the Court.
The Living Instrument Doctrine
The genesis of the ‘living instrument’ doctrine may be found in the seminal case of Tyrer v United Kingdom[iv] in which the Court described the Convention as ‘a living instrument, which must be interpreted in the light of present-day conditions’.[v] In the Tyrer case this meant that the practice of corporal punishment in the form of judicial birching of a schoolboy which was considered to be out of sync with developments within other Member States, amounted to degrading treatment contrary to Article 3 of the Convention.[vi] Letsas identifies three key features of the living instrument approach by the Court.[vii] Firstly, the court gives precedence to ‘present-day’ standards when interpreting the Convention rather than what may have been considered acceptable state conduct at the time of drafting the convention or what the drafters intended. Secondly, the present day standards must be common or shared amongst the contracting states. Thirdly, the Court does not give decisive weight to the view of the respondent state on what the right standard should be in the particular case.[viii] As a result of this analysis Letsas identifies a link between evolutive interpretation of the Convention and two other doctrines of the court: autonomous concepts and the margin of appreciation doctrine.[ix] For the purposes of this paper, comments will be restricted to the margin of appreciation doctrine.
Impact on the Margin of Appreciation Doctrine
The margin of appreciation is the allowance given by the Court to national authorities to interpret and apply the provisions of the Convention.[x] The Court has justified its use of the margin of appreciation doctrine on the basis that states are in a ‘better position’ than the Court to determine certain issues.[xi] Although the use of the margin of appreciation doctrine by the Court has been the subject of criticism,[xii] it remains one of the important tools of interpretation regularly used by the Court. The interpretation of the Convention as a living instrument is linked to the role that consensus plays in the margin of appreciation doctrine.[xiii] Has this however led to the demise of the margin of appreciation doctrine? One thing is certain; reference to the margin of appreciation doctrine is still within the jurisprudence of the Court and has been the subject of a lot of academic discourse on the Court’s jurisprudence.[xiv] The desire for the continued presence of the doctrine by the member states may also be seen by the drafting of Protocol No 15, which calls for an inclusion of the margin of appreciation doctrine within the Preamble of the Convention.[xv] On the face of it therefore, there does not appear to be demise in the margin of appreciation doctrine.
The impact of the living instrument doctrine on the margin of appreciation doctrine is more nuanced. One of the main areas of impacts is that it is used to determine the ‘width’ of the margin of appreciation given to contracting States.[xvi] A narrow margin of appreciation is given where the Court finds a European Consensus.[xvii] In early cases such as Tyrer v United Kingdom,[xviii] Marckx v Belgium,[xix] Dudgeon v United Kingdom[xx] the Court relied on the developing standards in other member States of the Council of Europe in determining that the rights of the applicants had been violated. A narrow margin is also given where the matter is related to rights fundamental to democracy, namely freedom of expression and freedom of association and assembly.[xxi] On the other hand, a wide margin of appreciation is given when the Court decides that there is no consensus and therefore finds no violation.[xxii] States enjoy a wide margin of appreciation where morals are at stake.[xxiii]
A shift can be seen in the case law of the Court from 1998 in which the Court has resorted to the concept of ‘common values’ in determining whether there has been evolution in a particular concept and therefore the width of the margin of appreciation to be granted to the State.[xxiv] This may be seen in the area of recognition of new identity of post operative transsexuals,[xxv] freedom of civil servants to form a trade union,[xxvi] identification of human trafficking as modern day slavery,[xxvii] authorization for lesbians to adopt,[xxviii] prohibiting a blanket ban on prisoner’s to vote.[xxix] In all these cases the Court showed a willingness to restrict the margin of appreciation the states enjoyed even though there was no consensus on the issue. The Court rather chose to rely on the evolution of ‘common or shared standards’.[xxx]
In more recent cases such as Pichkur v Ukraine,[xxxi] and Vallianatos and others v Greece[xxxii] the Court has carried on with this approach of relying on evolution in international society. In both cases the Court acknowledged that states have a wide margin of appreciation under Article 14. It however held in Pichkur that the practice of denying pension to those living abroad could not be justified in the light of international trends and in Vallianatos that the ‘Civil Union’ law enacted by Greece which only allowed for relationships between couples who were different sex adults to be registered was discriminatory against same sex couples and in breach Article 14 of the Convention. The width of the margin of appreciation doctrine therefore continues to be subjected to the interpretation of the Convention as a living instrument.
Restricted Correlativity and the Living Instrument Approach
A common denominator of the margin of appreciation doctrine and the living instrument doctrine is that they are used by the Court to determine whether a state has a duty in a particular case. For the applicant to enjoy the right in question, a duty has to be imposed on the State. This is linked to the correlativity thesis. Simply put, the correlativity thesis as advocated by Hohfeld is that for every right there is a correlative duty.[xxxiii] Joseph Raz attacked the correlativity thesis on three main points. Firstly, the prominence given to the choice of the right holder, secondly, the failure to recognise that a right is a ground of a duty which only if not counteracted by other prevailing conditions, justifies that other person to have the duty and thirdly, the failure to realize that there is no closed set of duties fixed to any particular right.[xxxiv] Whilst Raz acknowledges a relationship between rights and duties, he argues that a right of one person is not a duty on another but rather, a ground of a duty, a ground which, if not counteracted by conflicting considerations, justifies holding that other person to have the duty’.[xxxv] He also argued that the duties that attach to rights are largely interpreted taking into consideration the society in which they originate or the context in which they originate. [xxxvi] Therefore the same right can be a ground for new duties.
The application of Raz’s restricted correlativity thesis is relevant to the presence of the margin of appreciation doctrine and the living instrument approach. Whereas his position that a right is a ground of a duty if there are no other countervailing circumstances supports the existence of a margin of appreciation doctrine in the area of qualified rights, his position that there is more than one duty with every right and that such duties are dynamic, supports the idea that the interpretation of the convention can evolve to create new duties which give effect to the rights already contained within the Convention.
It is clear that the Court has retained both the living instrument approach and the margin of appreciation within its jurisprudence. The continued use of evolutive approach has meant adjustments within the width of the margin of appreciation but has certainly not eradicated the margin of appreciation from the Court’s jurisprudence. Applying the restricted correlativity thesis to the Court’s approach can justify the presence of both within the Court’s jurisprudence. It does not however determine which of these approaches should take precedence.
[i] Pieter Van Dijk, G. J. H. Van (Godefridus J. H.) Hoof, G. J. H. Van Hoof, A. W. Heringa, Theory & Practice of the European Convention on Human Rights (3rd edn, Kluwer Law International 1998) 77; this means that the Convention ‘evolves’ through the interpretation of the Court: see Luzius Wildhaber, ‘The European Court of Human Rights in Action’ (2004) 21 Ritsumeikan Law Review 83,84
[ii] Views have been expressed by both academics and members of the judiciary. For example in Marckx v Belgium (1979) 2 EHRR 330, Sir Gerald Fitzmaurice in his dissenting judgment criticized the application of judge-made law in the realm of international adjudication which relies on state consent. On the other hand, George Letsas has defended the use of the living instrument doctrine by the Court arguing that the Court would lose its legitimacy if it does not interpret the Convention as a living instrument – See Letsas, George, The ECHR as a Living Instrument: Its Meaning and its Legitimacy (March 14, 2012). Available at SSRN: http://ssrn.com/abstract=2021836 or http://dx.doi.org/10.2139/ssrn.2021836 24
[iii] Within this paper, ‘living instrument’ and ‘evolutive interpretation’ will be used interchangeably.
[iv] Tyrer v United Kingdom (1978) 2 EHRR 1
[v] See e.g. Françoise Tulkens, Section President of the European Court of Human Rights. Seminar ‘What are the Limits to the evolutive interpretation of the Convention?’ Dialogue between Judges 2011 page 6, Murat Tümay, ‘The Margin of Appreciation Doctrine Developed by the Case Law of the European Court of Human Rights’ (2008) 5(2) Ankara Law Review 201, 210; Baroness Hale of Richmond, ‘Beanstalk or Living Instrument: How Tall Can the ECHR Grow?’ (2011) Barnard’s Inn Reading page 1; Alastair Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) HRL Rev 57,60;
[vi] Tyrer v United Kingdom (n 4)
[vii] Letsas, (n 2) 2
[viii] Letsas, (n 2) 2
[ix] Letsas, (n 2) 5; a link between the living instrument approach and the margin of appreciation doctrine is also recognised in other literature – e.g. Baroness Hale of Richmond, (n 5) 18
[x] This is in keeping with the fact that the Convention expressly assigns the primary role of application and enforcement of its provisions to the States parties – Article 1 ECHR provides that ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention’
[xii] Advocates of the doctrine deem it a justified response to sociological, religious, cultural, moral, political and ideological diversity between the contracting States – For example – Yutaka Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR (Intersentia 2002) 3 and K A Kavanaugh, ‘Policing the Margins: Rights Protection and the European Court of Human Rights’ (2006) EHRLR 422; whilst Jeffrey Baruch has called for the margin of appreciation to be abandoned because it is a threat to the rule of law Jeffrey A Baruch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2004) 11 Columbia Journal of European Law 113
[xiii] Letsas (n 2)
[xiv] The proliferation of the use of the margin of appreciation doctrine by the Court is noted in a lot of academic articles. E.g. Jan Kratochvíl, The Inflation of the Margin of Appreciation by the European Court of Human Rights’ (2011) 29(3) Netherlands Quarterly of Human Rights 324
[xv] Article 1 of the new Protocol No 15 inserts within the preamble to the Convention, the requirement that its provisions to be interpreted in line with the margin of appreciation doctrine as developed by the Court. This move to include the margin of appreciation doctrine in the Preamble of the Convention is significant because by virtue of Article 31(2) VCLT 1969, the Preamble to an international Convention can be relied on in order to inform context for the purpose of interpretation of the treaty.
[xvi] This position may be seen within academic literature. For e.g. – Tümay (n 5); Letsas (n 2) 5
[xvii] Letsas (n 2) 5
[xviii] Tyrer (n 6)
[xix] Marckx v Belgium (1979) 2 EHRR 330
[xx] Dudgeon v United Kingdom (1981) 4 EHRR 149
[xxi] Tümay, (n 5) 231
[xxii] Examples of such early cases are Rees v United Kingdom (1986) 9 EHRR 56; Cossey v United Kingdom (1990) 13 EHRR 622; Otto-Preminger-Institut v Austria (1994) 19 EHRR 34 and Sheffield and Horsham v UK (1998) 27 EHRR 163
[xxiii] E.g. Handyside (n 11)
[xxiv] Letsas (n 2) 5
[xxx] Letsas (n 2)
[xxxi] Pichkur v Ukraine (2013) ECHR 1099
[xxxii] Vallianatos and Others v Greece (2013) ECHR 1110
[xxxiii] Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913-1914) 23 Yale LJ 16, 32; Wesley Newcomb Hohfeld, ‘Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1916-1917) 26 Yale LJ 710
[xxxiv] Joseph Raz, The Morality of Freedom (OUP 1986) 171
[xxxv] Raz (n 34)
[xxxvi] Raz (n 34) 170-171