I. INTRODUCTION
The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR).Footnote 1 To a limited degree it has spread to some other human rights institutionsFootnote 2 and to other international decision-making bodies.Footnote 3 Yet one of the great intellectual mysteries in international human rights law remains—why has the Human Rights Committee (HRC) under the International Covenant on Civil and Political Rights (ICCPR) not only not invoked the concept of the MoA, but explicitly rejected it. This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the ICCPR, so the doctrine should be applied by the HRC.
Following these introductory comments, Section II examines the concept and use of the MoA and, in particular, the relationship between the MoA and the Standard of Review. Section III assesses the role of consensus or the lack thereof in determining the MoA. Section IV considers the various justifications advanced for using the MoA. Section V assesses various critiques of the MoA. Section VI raises the issue of the non-use of the MoA by the HRC. Section VII analyses a series of jurisprudential similarities and differences between the European Court of Human Rights (ECtHR)/ECHR and the HRC/ICCPR and considers whether they justify or explain the non-use of the MoA by the HRC. Section VIII considers the development of complementary and conflicting jurisprudence as between the ECtHR and the HRC. Section IX critiques a series of possible explanations for the non-use of the MoA. Section X offers some concluding reflections.
II. THE CONCEPT OF THE MARGIN OF APPRECIATION
A. The Concept
Although the MoA was judicially developed by the European Court of Human Rights (ECtHR) it has now received express affirmation and support from the States parties to the ECHR. The ‘Brighton Declaration’ on the Future of the ECtHR (2012)Footnote 4 contained seven references to the ‘margin of appreciation’ and six references to ‘subsidiarity’.Footnote 5 Protocol 15 ECHR (2014) (not yet in force) will add to the Preamble of the ECHR a reference to the principle of subsidiarity and the doctrine of the MoA. Even before Protocol 15 comes into force the ECtHR had stressed the ‘crucial importance’ of its subsidiary role.Footnote 6
The MoA is not a right of States. It is a doctrine of judicial self-restraint that was developed by the ECtHR and which the States parties have now endorsed.Footnote 7 It was originally applied in the context of derogationsFootnote 8 but has now spread to the interpretation of the scope of obligations under all of the substantive articles, even obligations under non-derogable ones such as Articles 2Footnote 9 and 3,Footnote 10 and to the accessory protection against discrimination in Article 14.Footnote 11 In the seminal MoA case, Handyside v UK (1976), the ECtHR explained that,
This margin [of appreciation] is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force … The domestic margin of appreciation … goes hand in hand with a European supervision. Such supervision concerns both the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.Footnote 12
The MoA is most commonly applied in the context of limitations on rights.Footnote 13 It has assumed even more significance as the ECtHR, through its case law, has expanded the scope of ECHR rights through its interpretation of the ECHR as a ‘living instrument’Footnote 14 and thereby developed the scope of procedural and positive obligations.Footnote 15 With respect to positive obligations the States enjoy a wide MoA in determining the steps to be taken to ensure compliance with the ECHR with due regard to the needs and resources of the community and of individuals.Footnote 16
In assessing whether there exists a pressing social need for the measure in question and, in particular, whether the interference was proportionateFootnote 17 to the legitimate aim pursued, regard has to be had to the ‘fair balance’ which has to be struck between the relevant competing interests and in respect of which the State enjoys an MoA.Footnote 18 The breadth of the MoA to be accorded to the State can be crucial to the ECtHR's conclusion as to whether the challenged provision struck a fair balance.Footnote 19 In delimiting the extent of the MoA the ECtHR has regard to what is at stake therein.Footnote 20 Where a particularly important facet of an individual's existence or identity is at stake, the MoA allowed to the State will normally be restricted.Footnote 21 So too where measures, such as deprivation of legal capacity, have such an adverse effect on an individual's personal autonomy.Footnote 22 If the process was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism.Footnote 23 Significance is also attached to whether the measure deprived the alleged victim of the core contents of a Convention right.Footnote 24
In terms of whether the MoA applies and its width, it will be significant if the relevant law or policy is considered to reflect the ‘profound moral views of the people of the state’Footnote 25 or ‘concerns a question about the requirements of morals’.Footnote 26 There will usually be a wide MoA if the State is required to strike a balance between competing private and public interests or competing rights and interests that are protected under the ECHR.Footnote 27 Where ECHR rights deserve equal respect the MoA should in principle be the same irrespective of which party brings the proceedings.Footnote 28
An element to which the ECtHR increasingly directs its attention is whether the national decision-making process, seen as a whole, provides for the requisite protection by weighing up the interests at stake in detail and in depth.Footnote 29 The ECtHR may also afford a wider MoA during a particular historical background, such as during a transition to democracy.Footnote 30 However, there will come a point where the transition is considered to have been sufficiently consolidated and the margin will narrow.Footnote 31 The application of the MoA means that some restrictions on rights may vary from one State to another or even from one region to another within the same State, especially a State that has opted for a federal type of political organization.Footnote 32 In such cases only serious reasons could lead the ECtHR to substitute its own assessment for that of the national and local authorities, which are closer to the realities of their country, for it would thereby lose sight of the subsidiary nature of the Convention system.Footnote 33
If a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, then the State's MoA is substantially narrower and it must have very weighty reasons for the restrictions in question. This approach has been applied, for example, in the context of those suffering different treatment on the ground of their gender,Footnote 34 race,Footnote 35 sexual orientationFootnote 36 or mentally disability.Footnote 37 The reason for this approach, which questions certain classifications per se, is that such groups were historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping which prohibits the individualized evaluation of their capacities and needs.Footnote 38
It is critical to emphasize that the MoA afforded to States is an instrument of supervision—European supervision goes ‘hand in hand’ with it. The MoA is not an instrument of surrender or abdication. Even if the applicable MoA is wide, it is not all-embracing.Footnote 39 European supervision is not limited to ascertaining whether the State exercised its discretion reasonably, carefully and in good faith. These elements are necessary but not sufficient. The ECtHR commonly uses the language of whether the State has remained within, or not overstepped, an ‘acceptable’ MoA.Footnote 40
The ECtHR has to satisfy itself that the standards applied by national authorities were in conformity with the principles embodied in the substantive ECHR norms and decisions must have been based on an acceptable assessment of the relevant facts.Footnote 41 It is notable that there are many cases in which the ECtHR affords States a wide MoA but then decides that States have not remained within it, usually due to disproportionalityFootnote 42 or the lack of a fair balance, and so there is a violation.Footnote 43 Even where the ECtHR is clear that it is an area where States have an MoA, reasonable judges may disagree on whether a fair balance has been struck in an individual case.Footnote 44
B. The Relationship between the MoA and the Standard of Review
A critical element to appreciate is that the scope of the MoA afforded directly relates to the strictness of review. Broadly speaking, the wider the margin, the less strict the scrutinyFootnote 45 and vice versa. However, this is only a generalization or starting point. In Alajos Kiss v Hungary Footnote 46 the ECtHR accepted participation in public affairs by voting was an area in which, generally, a wide MoA should be granted to the national legislature.Footnote 47 However, the treatment as a single class of those with intellectual or mental disabilities was a questionable classification, and the curtailment of their rights must be subject to strict scrutiny.Footnote 48
The MoA is likely to be wide, and consequently the standard of review less strict, where economic or social policy issues are involved.Footnote 49 So too with respect to environmental issues.Footnote 50 Where there is a wide MoA the ECtHR sometimes adopts a practice of upholding the State's conduct unless the national court has misinterpreted or misapplied the relevant article of the ECHR or the ECtHR's jurisprudence or had reached a conclusion that was ‘manifestly unreasonable’Footnote 51 or ‘devoid of reasonable foundation’.Footnote 52 Where there is a narrow or limited MoA the burden will be on the State to produce compelling and very weighty reasons to justify the interference.Footnote 53 In such cases there may effectively be a ‘presumption of a violation of the Convention’.Footnote 54
C. Blanket or Indiscriminate Rules
As the ECHR system has matured States are usually able to comply with requirements that limitations be prescribed by law and have a legitimate aim. Thus it is the ECtHR's analysis of the proportionality of the measures at issue that is often critical.Footnote 55 In a number of the cases the central problem for the ECtHR was that the particular rule was considered to be of a blanket and indiscriminate nature. Examples include Hirst (No 2) v UK (prisoner voting),Footnote 56S and Marper v UK Footnote 57 (retention of DNA samples and fingerprints in the absence of a criminal conviction) and in Alajos Kiss Footnote 58 (absolute bar on voting by any person under partial guardianship). However, in other situations the ECtHR has accepted that a blanket or indiscriminate rule can be consistent with the ECHR standards.Footnote 59 Even when violations are found, it can be argued that the MoA continues to have a significant influence because the ECtHR leaves considerable discretion to States to devise proportionate schemes in response.Footnote 60 Apart from pilot cases dealing with structural issues, a small number of cases where it considers there would only be one effective remedy, and an increasing number of cases in which the judgment of the ECtHR also seeks to provide assistance—so-called ‘judgments with indication of interest for execution (under article 46)’, it normally makes no attempt to devise a legislative scheme to remedy the problem.Footnote 61
III. THE ROLE OF CONSENSUS IN DETERMINING THE MARGIN OF APPRECIATION
In determining the MoA the ECtHR may, if appropriate, have regard to any consensus and common values emerging from the State practices of the parties to the ECHR.Footnote 62 It makes increasing use of the comparative methodFootnote 63 to indicate the degree of any European consensus on a particular issue.Footnote 64 Normally a strong consensus will narrow the MoA and vice versa.Footnote 65 In Schalk and Kopf v Austria Footnote 66 the ECtHR relied on the idea of the MoA and the absence of consensus to deny the existence of an ECHR right to same-sex marriage.Footnote 67 A former President of the ECtHR has explained that the ECtHR looked for consensus before it narrowed the margin. He saw this as a safeguard ‘to prevent any rapid and arbitrary development of the Convention rights’Footnote 68 and to ensure that ‘legal developments keep pace with, but do not leap ahead of, societal changes within Europe’.Footnote 69
Consensus is significant in terms of weighting but it is not necessarily decisive or determinative.Footnote 70 Even a strong consensus amongst a substantial majority of States may not decisively narrow the broad MoA of the State if the broader context of the issue remains one where there is no European consensusFootnote 71 or where ‘special historical or political considerations exist which render a more restrictive practice necessary’.Footnote 72 Where there is no consensus within between States, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive social, moral or ethical issues, the MoA will be wider.Footnote 73 Alongside the absence of consensus, a number of other factors may point to States having a wider MoA in regulating particular issues.Footnote 74
If an emerging consensus is not based on settled and long-standing principles established in the law of the Member States but rather reflects a stage of development within a particularly dynamic field of law, this will not decisively narrow the MoA.Footnote 75 An important aspect of looking for the consensus is that the jurisprudence on particular controversial issues may take significant periods of time to be established. That gives States time to reflect on comparative social, economic and scientific developments both within and across States. For example, the ECtHR's jurisprudence on transsexuals changed significantly but over a 16-year period.Footnote 76 In fact in that particular instance the European consensus had not changed much in that period but the ECtHR considered that there was a ‘clear and uncontested evidence’ of a ‘continuing international trend’ in favour of increased social acceptance of transsexuals and of legal recognition of the new sexual identity of post-operative transsexuals. The evidence cited came from Singapore, Canada, South Africa, Israel, Australia, New Zealand and states within the US.Footnote 77 In Oliari and Others v Italy Footnote 78 in 2015 only a thin majority of CoE States (24 out of 47) had already legislated in favour of such recognition of same-sex relationships but the ECtHR referred to rapid development that could be identified globally, with particular reference to countries in the Americas and Australasia. The ECtHR attached some importance to the ‘continuing international movement towards legal recognition’.Footnote 79
Generally the working assumption of the ECtHR has been that human rights standards incrementally and progressively increase,Footnote 80 and so the MoA only tends to narrow over time. Thus consensus is normally relied upon to expand the scope of rights and restrict the scope of limitations. However, legal and social experimentation is possible within limits.Footnote 81 It is clear that it is open to States to impose new restrictions on rights and these may fall within the MoA even if other States have not imposed them.Footnote 82 A striking illustration is the ban on the wearing in public places of clothing that is designed to conceal the face (the so-called Burqa ban).Footnote 83 Of the 47 Member States of the Council of Europe, only France and Belgium had actually imposed such bans. Nonetheless, in SAS v France Footnote 84 in 2014 the ECtHR considered that there was no European consensus as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places.Footnote 85 The ECtHR held that having regard in particular to the breadth of the MoA accorded to France, the ban could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of ‘living together’ as an element of the ‘protection of the rights and freedoms of others’.Footnote 86
There are two further factors in support of a consensus analysis. The first is an instrumental one. The ECHR is posited on the idea of shared cultural values based on a ‘common heritage of political traditions, ideals, freedom and the rule of law’.Footnote 87 If the interpretation of the ECHR by the ECtHR enjoys widespread underlying support in other States across the Council of Europe, this obviously makes ultimate acceptance and implementation of the ECtHR's evolutive interpretation by national legislatures, executives and judiciaries significantly more likely.Footnote 88 The search for consensus reflects a judicial philosophy of establishing some basic, if increasingly sophisticated, minimum standards rather than one of unifying or harmonizing standards.Footnote 89 In short, the search for consensus puts a sensible limit on judicial creativity and judge-made law.Footnote 90 The second is a normative one. Judgments of the ECtHR are technically binding only on the State party concerned. However, in effect the jurisprudence has an erga omnes effect. The ECHR has been incorporated in some manner and form in all 47 States parties to the ECHR and they are urged to take account of the ECHR jurisprudence and to draw the necessary implications with respect to their own laws and practice.Footnote 91 Much of the comparative success of the ECHR ultimately depends on the cooperation of the national courts. The Committee of Ministers of the Council of Europe and the ECtHR increasingly stress that implementing ECtHR's judgments is a shared judicial responsibility.Footnote 92
A detailed analysis of the ECtHR's practice with respect to consensus published in 2013 concluded that, ‘consensus analysis is a sound and constructive idea’.Footnote 93 However, even when judges accept the concept of looking for consensus in determining the MoA, there have been cases where have been significant and often very critical dissents on how it should be assessed. In Evans v UK Footnote 94 there was a four-judge dissent describing a decision based on a wide MoA due to the absence of a consensus as simplistic and mechanical.Footnote 95 In Chapman v UK Footnote 96 a seven-judge dissent rejected the majority's assertion that the consensus was not sufficiently concrete and their conclusion that the complexity of the competing interests rendered the Court's role a strictly supervisory one. In X v Austria Footnote 97 there was a strong seven-judge dissent on the basis that, as the States in question were sharply divided, therefore there was no consensus. In Animal Defenders International v UK Footnote 98 there was an eight-judge dissent, essentially differing on the application of what they all agreed was a narrow MoA, regarding restrictions on expression on matters of public interest. The majority and the minority differed in their assessment of whether there was a European consensus. In Biao v Denmark Footnote 99 there was a 4:3 decision differing fundamentally on the application of the MoA.
IV. JUSTIFICATIONS FOR THE MARGIN OF APPRECIATION
There are a number of overlapping and related explanations for the MoA being afforded to States.Footnote 100
A. Subsidiarity
Some aspects of the MoA reflect foundational design and structural issues. First, under the ECHR system, and as now affirmed in Protocol 15, it is States that have the primary responsibility to secure the rights and freedoms defined in the ECHR and its Protocols.Footnote 101 Protocol 15 refers to this primary responsibility as being, ‘in accordance with the principle of subsidiarity’.Footnote 102 For the ECtHR the MoA is a reflection of the ‘fundamentally subsidiary role of the Convention mechanism’.Footnote 103
B. Institutional Competence and Inter-Institutional Comity
A related aspect of subsidiarity is that the ECtHR is an ‘international Court’.Footnote 104 It is not a national or European Constitutional Court,Footnote 105—though it may have softer constitutional tendencies, characteristics or elements,Footnote 106—or a European Supreme Court.Footnote 107 The MoA is, in part, a reflection of the relationship between an international court and national democratic systems,Footnote 108 including both their legislatures and their courts.Footnote 109 It is arguable that a concept like the MoA is necessary to make the interference by an international court with the sovereignty of democratic States tolerable and politically acceptable.Footnote 110 The language of deference is sometimes used to describe the operation of the MoA but this carries misleading connotations of servility. It is submitted that institutional competence,Footnote 111 comparative institutional advantage or judicial self-restraintFootnote 112 are better ways to understand the MoA. The ECtHR has itself described the MoA as a ‘tool to define relations between the domestic authorities and the Court’.Footnote 113 The ECtHR asserts that it is highly respectful of national courts, particularly superior courts, which faithfully seek to follow and apply ECHR jurisprudence. In those circumstances, it is respectful in the sense that it will accord their decisions greater deference and will be reluctant to be appearing to micromanage their decisions.Footnote 114 Where a balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the ECtHR's case law, the ECtHR requires strong reasons to substitute its view for that of the domestic courts.Footnote 115 Equally when such a balancing exercise has not been conducted then less strong reasons will be needed. The choice of undertaking such balancing is obviously one that national authorities must make for themselves. However, they cannot complain of discriminatory treatment by the ECtHR if they do not seek to follow the ECtHR's jurisprudence.Footnote 116
Of course, tensions in the relationship between superior national courts and the ECtHR are at their greatest when they adopt diametrically opposed interpretations. However, these are relatively few and far between and both sides appear to view the process as a dialogue to be managed rather than a supremacy context.Footnote 117
C. Democratic Societies and Democratic Legitimacy
‘Democracy’ is the key context or framework within which arguments and reasons have to be articulated within the ECHR system.Footnote 118 The ECtHR has repeatedly explained that pluralism, tolerance and broadmindedness are hallmarks of a ‘democratic society’.Footnote 119 Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society.Footnote 120 This constant search for a balance between the fundamental rights of each individual is regarded by the ECtHR as the foundation of a democratic society.Footnote 121
Thus, from the ECtHR's perspective, the MoA is a reflection of comparative institutional competence and the contributions from all levels of legislative and judicial bodies can operate within the MoA. Democratic and political legitimacy, even if broadly understood,Footnote 122 push the ECtHR towards respecting the decision of national legislatures, executives and courts. As noted, the MoA is commonly invoked in situations in which there is normative flexibility in the relationship between individual freedoms and collective or societal rights and interests.Footnote 123 As expressed in the Handyside case, the authorities' ‘direct and continuous contact with the vital forces of their countries’ place them in a better position than the international judge to give an opinion on the exact content of the requirements of permissible limitations and to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context of the measures taken to meet such requirements.Footnote 124 In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the ECtHR considers that the role of the domestic policy-maker should be given special weight.Footnote 125 In such circumstances, the ECtHR has a ‘duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question’.Footnote 126 For such respect for national decisions to be overborne there needs to be powerful considerations and reasoning based on the core moral principles or values of the human rights concerned.Footnote 127
Thus national authorities are viewed as having stronger, and sometimes more direct, democratic legitimacy and being, in principle, better placed than an international court to evaluate local needs and conditions.Footnote 128 However, the quality of the parliamentary and judicial review of the necessity of the measure in the respondent State is of particular importance to the operation and extent of the relevant MoA.Footnote 129 Quality in this context is probably best understood as meaning substantive and credible discussion of the human rights issues rather than as having to achieve a particular qualitative standard.Footnote 130 In Animal Defenders International v UK Footnote 131 the ECtHR attached considerable weight to exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the UK and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.Footnote 132 By contrast in Alajos Kiss v Hungary Footnote 133 the ECtHR observed that was no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the relevant restrictions on voting by persons under partial guardianship. Similarly in Dickson v UK Footnote 134 there was no evidence that when fixing the Policy on requests for artificial insemination by prisoners the Secretary of State had sought to weigh the relevant competing individual and public interests or assess the proportionality of the restriction. Further, since the Policy was not embodied in primary legislation, the various competing interests were never weighed, nor issues of proportionality ever assessed, by Parliament.
States will naturally be supportive of the concept of an MoA because it gives them more room for manoeuvre. That is, it affords them more scope for them to take decisions and for those decisions to be judged to be consistent with the ECHR. For example, the argument coming from the UK has been that the MoA is either not being applied, is being applied too narrowly,Footnote 135 or is being applied inconsistently.Footnote 136 The ECtHR's approach to the MoA has been the focus of increasing criticism from the UK government in particular. The terms of that critique were partially reflected in the ‘Brighton Declaration’ and in Protocol 15 ECHR.Footnote 137
The democratic legitimacy argument can only be pushed so far though.Footnote 138 Obviously, as an international court, the ECtHR does not have the same kind of democratic legitimacy that national Parliaments,Footnote 139 national governments and national courts do.Footnote 140 However, it is based on a Treaty that 47 States have consented to and that the Treaty clearly provides for the binding legal status of the ECtHR's judgments.Footnote 141 There is also a limited degree of democratic legitimacy stemming from the election of judges by the Parliamentary Assembly of the Council of Europe.Footnote 142 Moreover, history demonstrates that European democracies have been responsible for significant human rights abuses, including those against minorities such as the Roma.Footnote 143
D. European Human Rights Standards—Minimal, Uniform or Harmonized
If the ECtHR is perceived as an ‘international Court’, rather than a European Constitutional or European Supreme Court, then affording States an MoA is consistent with the idea that the ECtHR's function is not to decree uniformity wherever there are national differences, but to ensure that minimum, fundamental values are respected.Footnote 144 A previous President of the ECtHR has commented that the MoA, ‘is a clear expression of the fact that the Convention does not command or even aspire to strict uniformity throughout Europe in the protection of human rights … The states parties to the Convention are required to secure all Convention rights within their domestic systems, but this does not imply wholesale standardisation of national institutions, procedures and practices.’Footnote 145
It is also critically important to understand that the MoA is used by the ECtHR to determine whether or not it considers that there is a violation of the ECHR. That the ECtHR has considered that a particular issue falls within the MoA does not preclude the national authorities, legislative, executive or judicial, from considering that the ECHR should be interpreted at a level above the ECtHR's minimum. However, it must be acknowledged that a finding of no violation based on the MoA may lead to a levelling down of national protections.Footnote 146
V. CRITIQUES OF THE MARGIN OF APPRECIATION
The MoA has its critics inside the ECtHR.Footnote 147 Judge De Meyer, famously described references to the MoA as being ‘unnecessary circumlocutions’ which ‘implied relativism’ and were ‘as wrong in principle as it is pointless in practice’.Footnote 148 There have also been strong academic criticisms of the MoA.Footnote 149 There are critics of the concept's existence and of its use by the ECtHR. The fundamental critique is that the MoA erodes normative standards by encouraging their non-uniform, subjectivist or relativist applications, the consequences of which are inconsistent with the universality of human rightsFootnote 150 and the concept of the rule of law.Footnote 151 The lack of clarity inherent in the MoA makes for a lack of predictability in judicial decision-making which is inconsistent with the principle of legal certainty.Footnote 152 The search for consensus is thus contrary to basic rule-of-law requirements because it creates vague standards that defeat predictability.Footnote 153 The search for and identification of consensus risks imposing the majority view on minorities within a StateFootnote 154 and on a minority, even a substantial minority, of States. The wide MoA afforded by the ECtHR during emergencies has been criticized.Footnote 155 This was partly based on the view that the ECtHR should act as the ultimate protector of human rights.Footnote 156
There are accompanying methodological criticisms of both the role of consensus on determining the MoA and the widely acknowledged absence of a clear and consistent methodology underlying the search for consensusFootnote 157—which States?, how many?, what practice—legal or social?, for how long?, what of the practice of non-parties to ECHR?Footnote 158 And what weight is given to ratified and unratified treaties inside the Council of Europe and outside of it?Footnote 159 One problematic issue for the future will be whether, if the European Union becomes a party to ECHR, EU rules can be regarded as evidence of consensus?Footnote 160 If so, would this create a presumption of their compliance with the ECHR? There has also been criticism of the formulation of the issue or question to which consensus does or does not attach. The answer can vary depending on the formulation. In Şahin v Turkey Footnote 161 the narrow factual issue was the regulation of religious clothing in a university. There was no uniform European conception of the significance of religion in society or the wearing of religious symbols in educational institutions but there was a virtual consensus on whether adult women in universities can wear religious clothing. The ECtHR chose the first formulation of the consensus issue. The different outcomes of the Chamber and the Grand Chamber in Lautsi v Italy, concerning the display of crucifixes in classrooms, can also be explained by how the issue was framed.Footnote 162
Others regard the MoA as acceptable in principle and an appropriate concept in the subsidiary context in which it is used, but criticize its use or the approach to determining consensus in particular cases. Lord Hoffmann has supported the recognition of the MoA but was critical that there was no consistency in its application.Footnote 163 For him, the ECtHR had not taken the doctrine of the MoA nearly far enough and had been, ‘unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States.’Footnote 164 This was because the ECtHR considered itself the equivalent of the Supreme Court of the United States, ‘laying down a federal law of Europe’.Footnote 165 However, he considered that the ECtHR lacked constitutional legitimacy for such a role.Footnote 166 Lord Sumption has similarly criticized the ECtHR for treating the ECHR ‘not just as a safeguard against arbitrary and despotic exercises of state power, but as a template for most aspects of human life’.Footnote 167
Another criticism of some uses of the MoA by the ECtHR is that reference to it is a redundant and unnecessary rhetorical justification or conclusory label for an end result.Footnote 168 This is particularly so where the ECtHR has effectively engaged in its own review of the merits by applying a strict standard of proportionality. If it judges the measures proportionate, it simply adds that the State is within its MoA; if not, it simply adds that it has exceeded its MoA.Footnote 169
It is probably fair to say that, notwithstanding the centrality of the MoA in ECHR jurisprudence, there isn't necessarily a clear consensus amongst the current ECtHR's judges on the MoA. However, the majority of them appear to take the view that if national authorities have fully considered a case by reference to the ECtHR's jurisprudence and come to clear reasoned decisions, then serious reasons would be needed to overturn such decisions.Footnote 170 A minority of judges, while accepting the concept of the MoA as such, appear to take a less deferential approach. It is possible that this is partly out of a fear that they would be abdicating their judicial responsibilities. They see the ECtHR as having ultimate interpretative responsibility with respect to the ECHR and its role as being to set European human rights standards, not to defer to State's assessment of them.Footnote 171 These judges tend to consider each case afresh and take a stricter approach to assessing the actions of national authorities, particularly in terms of applying the principle of proportionality. The result is a greater tendency towards micromanagement. There is also a fear that reliance on the MoA because of the absence of consensus could unintentionally lower national standards.Footnote 172 This is particularly so with respect to the new States that joined after the end of the Cold War. However, in principle this should not happen as the ECHR itself safeguards existing levels of domestic human rights.Footnote 173
The MoA gives States ‘room for manoeuvre’Footnote 174 while retaining strong elements of European supervision. It is submitted that the complexity of factors taken account of in ECtHR's methodology in applying the MoA, including the weight given to consensus, leads to reason-based, justificatory arguments.Footnote 175 Most decisions of the ECtHR concern the internal, domestic application of human rights norms to individuals with the territory of the State concerned. There is a strong argument that the decisions adopted by the different levels of democratic processes within that territory should bear significant, but not necessarily decisive, weight.Footnote 176 One may disagree with the reasons and the arguments, their factual or evidential basis or epistemic value, but these are different issues. There is thus a process of reasoning, contestation and evaluation which is engaged in by democratic Parliaments and courts and, to some extent, the people.Footnote 177 Giving a significant but not necessarily determinative weight to the existence or non-existence of a consensus is a sensible and credible tool to ensure that the evolution of the ECtHR's jurisprudence keeps pace with but does not move so far ahead of societal changes within Europe that it creates significant risk of non-implementation. The MoA can thus be understood as a device which mediates between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences, and national or local cultural diversity.Footnote 178
VI. THE NON-USE OF THE MARGIN OF APPRECIATION BY THE HUMAN RIGHTS COMMITTEE
As noted, the ECHR's MoA jurisprudence began in the context of derogations.Footnote 179 The HRC, while acknowledging the sovereign right of a State to declare a state of emergency, has asserted a measure of international supervision over that national determination.Footnote 180 That starting point closely parallels that of the ECtHR.Footnote 181 However, while a wide MoA on both the existence of a state of emergency and the appropriate responses to it is central in ECHR jurisprudence on Article 15 ECHR,Footnote 182 the HRC has maintained that it does not use an MoA approach in assessing derogations. This is so even though express reference to the MoA doctrine was made during drafting of the ICCPR at the UN's Third Committee in 1963.Footnote 183 It is notable that the HRC's General Comment 29 (2001) on States of Emergency Footnote 184 made no reference to any MoA.
Elsewhere in its extensive jurisprudence, apart from one early case in 1982,Footnote 185 the HRC has not only studiously avoided the language of the MoA, it has expressly disowned it.Footnote 186 Within the context of Article 27 (minority rights) the HRC has stated that while a State may understandably wish to encourage development or allow economic activity by enterprises,
The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in Article 27.Footnote 187
This approach could have been limited to articles which do not have express limitations clauses. However, in the HRC's extensive jurisprudence on rights with express limitations the HRC decides cases with reference to the text of the ICCPR, but never by reference to any concept of an MoA.Footnote 188 It emphasized this point in General Comment 34 on ‘Article 19: Freedoms of opinion and expression’,
The Committee reserves to itself an assessment of whether, in a given situation, there may have been circumstances which made a restriction of freedom of expression necessary.Footnote 189 In this regard, the Committee recalls that the scope of this freedom is not to be assessed by reference to a ‘margin of appreciation’ Footnote 190 and in order for the Committee to carry out this function, a State party, in any given case, must demonstrate in specific fashion the precise nature of the threat to any of the enumerated grounds listed in paragraph 3 that has caused it to restrict freedom of expression.Footnote 191
VII. SIMILARITIES AND DIFFERENCES BETWEEN THE EUROPEAN COURT OF HUMAN RIGHTS (ECHR) AND THE HUMAN RIGHTS COMMITTEE/ ICCPR
This section analyses a series of similarities and differences between the ECtHR/ECHR and the HRC/ICCPR. It considers whether alone or in combination they justify or explain the non-use of the MoA by the HRC. It also examines the absence of consensus analysis by the HRC.
A. Similarities and Differences
In terms of substantive rights the ICCPR is essentially the equivalent of the ECHR only at the global level. In terms of obligations it is States that have the primary responsibility to secure the rights in the ICCPR. The civil and political rights covered, and the language used, are broadly similar.Footnote 192 The HRC follows many of the interpretative approaches of the ECtHRFootnote 193—the living instrument approach,Footnote 194 purposive interpretation in accordance with object and purpose,Footnote 195 the autonomous meaning of ICCPR terms,Footnote 196 interpretation to include positive and procedural obligations,Footnote 197 reliance upon international standards in other international instruments,Footnote 198 affording a wide scope to rights and a narrow scope to limitations,Footnote 199 and complementarity with other international law norms. In terms of monitoring systems the right of individual petition under the ECHR has evolved over time to become mandatory. Under the First Optional Protocol to the ICCPR the right of individual petition remains optional (but has been accepted by 115 States parties as of 1 October 2015). The ICCPR also has a mandatory reporting system (as do all the UN Treaty bodies and the European Committee of Social Rights) and an inter-State complaint mechanism (which has never been invoked). If it did explicitly adopt an MoA approach then it would also have to give effect to it in those contexts.Footnote 200
In terms of institutional competence and legitimacy it is significant that the ECtHR is a judicial institution—an international court. It is not a regional constitutionalFootnote 201 or regional supreme court.Footnote 202 The HRC is not a judicial institution and it is not an international Court. At best it is a quasi-judicial international committee of independent experts. Like the ECtHR the HRC does not consider itself as a ‘fourth instance’ body to which appeals can be directed.Footnote 203 The ICCPR system was thus designed at securing minimum fundamental values. It was not directed towards establishing uniform, harmonized rules.
Like the ECtHR, the HRC has a subsidiary role to that of States. Neither its Final Views under the First Protocol or its Concluding Observations and General Comments under the Article 40 ICCPR reporting process are legally binding. It is even more difficult to say that is the HRC rather than States that should act as the ultimate protector of human rights or have the final word in relation to interpretation.Footnote 204 There is a risk that not affording States an MoA could make interferences by the HRC with sovereignty of States intolerable and politically unacceptable.Footnote 205 Many States within the ICCPR system are now broadly democratic.Footnote 206 Democratic and political legitimacy should push the HRC towards respecting the decisions of and the balances struck by national legislatures, executives and courts. This is so particularly with respect to the range of procedural, positive and remedial obligations that the HRC has interpreted into the ICCPR. Finally, the HRC has never suggested that the ICCPR created some new international legal order with its own constitutional framework and founding principles in the way that the CJEU considers the EU Treaties to have done.Footnote 207
It is submitted that such textual, monitoring and institutional differences as there are seem to be inconsequential in relation to the MoA issue under consideration. None of the differences identified seem to provide any justification for a different approach to the issue of an MoA.
B. The Absence of Consensus Analysis by the HRC
We have noted the critical importance of the consensus approach under the ECHR.Footnote 208 Such an approach can be sensitive to special historical or political considerations, processes of transition towards democracy, the relative importance of the interest at stake, balancing competing private and public interests, maintaining the core essence of rights, protecting historically vulnerable groups, sensitive moral or ethical issues, complex scientific and technical issues.Footnote 209 The same type of considerations can and should equally apply in the ICCPR system. Alongside the absence of consensus, a number of other factors may point to States having a wider MoA in regulating particular issues.Footnote 210 However, if consensus is significant in terms of weighting in Europe why should it appear to be of no or minimal significance in the ICCPR system?Footnote 211 Can the proper interpretation of the ICCPR really afford to be, or at least appear to be, so divorced from State practice? The risk for the HRC is that, by undervaluing the consent of the relevant community of States as a factor in the interpretation of a human rights treaty, it will lose the support of the international community of States and thereby damage the effectiveness of the international human rights system.Footnote 212
Moreover, if ‘consensus analysis is a sound and constructive idea’Footnote 213 in Europe, why is it not in the broader international system? If reference to an MoA is important to prevent any rapid and arbitrary development of ECHR rights,Footnote 214 why is this not also the case with the ICCPR? If the width of the MoA is relevant to the standard of scrutiny under the ECHR, does the ICCPR really only apply a single standard of strict scrutiny in all cases, and if so, is that appropriate? If interpretations by the HRC do not enjoy widespread underlying support doesn't this make acceptance and implementation of their Views much less likely? As is well known many States parties do not implement the HRC's Views under OP1.Footnote 215
VIII. COMPLEMENTARY AND CONFLICTING JURISPRUDENCE AS BETWEEN THE ECTHR AND THE HRC
A. Interpretative Similarities: Complementary Jurisprudence
If essentially the same decision is reached then whether the ECtHR's use of the MoA is rhetorical or the HRC's non-use is rhetorical is academically interesting but ultimately insignificant in terms of substance. It is notable that there have been relatively few instances where the HRC and the ECtHR have clearly differed on their assessments with respect to the interpretation of their respective instruments. In many instances the second decision has referenced the first or clearly been taken with knowledge of the first.Footnote 216 A good example is the cases concerning religious instruction in Norway. The HRC has held that such instruction will not satisfy the tests of neutrality and objectivity required by Article 18 ICCPR if it gives priority to one religion (eg Christianity) over another or if it involves the actual practice of a religion rather than the imparting of information. The instruction of ‘Christian Knowledge and Religious and Ethical Education’ (CKREE) in Norwegian public schools in 1997 was held to have failed on both these counts In Unn and Leirvåg et al. v Norway,Footnote 217 decided in November 2004, the HRC closely scrutinized the framework and practical implementation of an exemption system and found a breach of Article 18(4) (respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions).Footnote 218 Despite modifications introduced after the decision of the HRC, in 2007 in Folgero v Norway Footnote 219 the Grand Chamber of the ECtHR found, by nine votes to eight, that there had been a violation of Article 2 of Protocol No. 1 to the ECHR (parents' right to respect for their convictions). The minority of eight found that the arrangements for a partial exemption did not entail an excessive or unreasonable burden for parents who wished to make a request for an exemption, and therefore remained within Norway's MoA. They regarded the scope of the case before the ECtHR as more limited than that reviewed on the merits by the HRC and did not view its conclusions as contradicting those reached by the HRC.
B. Interpretative Differences: Conflicting Jurisprudence
It is particularly instructive to consider the small number of cases where the HRC has reached a different decision than the ECtHR on the substance of essentially the same issue and consider whether it was the non-use of the MoA that made the difference.
1. Regulation of religious dress on residence and identity documents
In 2008 in Mann Singh v France Footnote 220 the ECtHR Court accepted that identity photographs on driving licences which showed MS, a Sikh, bareheaded were needed by the authorities in charge of public safety and law and order, particularly in the context of checks carried out under the road traffic regulations, to enable them to identify the driver and verify that he or she was authorized to drive the vehicle concerned. It stressed that checks of that kind were necessary to ensure public safety within the meaning of Article 9(2) ECHR. It considered that the detailed arrangements for implementing such checks fell within France's MoA, especially since the requirement for persons to remove their turbans for that purpose or for the initial issuance of the licence was a sporadic one. It therefore held that the impugned interference had been justified in principle and was proportionate to the aim pursued. The application was declared manifestly ill-founded without even communicating it to the State and without any more detailed reasoning and analysis.Footnote 221
In two decisions in 2011 and 2013 the HRC took completely the opposite view. Ranjit Singh v France Footnote 222 in 2011 concerned a refusal to renew a residence permit in the absence of an identity photograph showing RS, a Sikh, bareheaded. RS claimed that because he did not have a residence permit, he no longer had access to the public health-care system or to social benefits. RS did not make an application to the ECtHR on the basis that its established jurisprudence was against him. He cited national court decisions and the decision of the ECtHR in Mann Singh v France, considered above, in support of this. There was no dispute that the measure was prescribed by law and had the legitimate aim of ensuring and verifying, for the purposes of public safety and public order, that the person appearing in the photograph on a residence permit was in fact the rightful holder of that document. The HRC asserted that it was for it to determine whether Article 18(3) ICCPR was satisfied. Its task was to decide whether that limitation was necessary and proportionate to the end sought. It unanimously decided that it was not on the basis that,
the State party has not explained why the wearing of a Sikh turban covering the top of the head and a portion of the forehead but leaving the rest of the face clearly visible would make it more difficult to identify the author than if he were to appear bareheaded, since he wears his turban at all times. Nor has the State party explained how, specifically, identity photographs in which people appear bareheaded help to avert the risk of fraud or falsification of residence permits.Footnote 223
Consequently, France had not demonstrated that the limitation placed on RS was necessary within the meaning of Article 18(3). The HRC also observed that,
even if the obligation to remove the turban for the identity photograph might be described as a one-time requirement, it would potentially interfere with the author's freedom of religion on a continuing basis because he would always appear without his religious head covering in the identity photograph and could therefore be compelled to remove his turban during identity checks. The Committee therefore concludes that the regulation requiring persons to appear bareheaded in the identity photographs used on their residence permits is a limitation that infringes the author's freedom of religion and in this case constitutes a violation of article 18 of the Covenant.Footnote 224
Essentially the same approach was followed in Mann Singh v France,Footnote 225 decided by the HRC in 2013. MS, a Sikh, and the same individual who had earlier brought a case to the ECtHR,Footnote 226 had obtained a series of French passports, for each of which he had been photographed wearing his turban. However, when he sought a renewal in 2005 he was informed that, pursuant to a Decree of 2001, he was obliged to be photographed without the turban. Challenges before the French courts and, as noted, before the ECtHR, failed. Although the factual issue before the HRC was different, France specifically pointed out that MS was effectively asking the HRC to disagree with the French courts and the ECtHR. It pointed to the similarity of wording between Article 9 ECHR and Article 18 ICCPR, the very strong similarity between the cases and the high level of protection of human rights afforded by both the ECtHR and the HRC. France claimed that the requirement was authorized by Article 18(3) as it responded to, ‘the need to limit the risk of fraud or falsification of passports and facilitates the identification of the passport holder by the administrative authorities, while the constraints involved are only temporary’.Footnote 227
Nonetheless, the HRC asserted that it was for it to determine whether Article 18(3) was satisfied. Again, there was no dispute that the measure was prescribed by law and had the legitimate aim of ensuring and verifying, for the purposes of public safety and public order, that the person appearing in the photograph on a passport was in fact the rightful holder of that document. The HRC's task was to decide whether that limitation was necessary and proportionate to the legitimate aim. It unanimously decided that it was not. The HRC made the same observations on France's explanations and the continuing basis of the interferences as in the Ranjit Singh case. Again, therefore, the HRC concluded that the regulation requiring persons to appear bareheaded in their passport photographs was a disproportionate limitation that infringed the MS's freedom of religion and constituted a violation of Article 18.Footnote 228
Is it possible to distinguish the cases decided by the ECtHR and the HRC? Inability to travel outside of France because of the absence of a passport (the issue in Mann Singh before the HRC) would have a fundamental effect on freedom of movement.Footnote 229 Inability to obtain a driving licence (the issue in Mann Singh before the ECtHR) was of a lesser order but nonetheless of immense practical significance to the daily lives of individuals. The HRC's decision in Ranjit Singh (concerning a residence permit which was important for lots of practical reasons including access to health care and social benefits) suggests that distinguishing between the cases in this way would not be defensible. If not, then there is just a blatant difference between the jurisprudence of the HRC on one side and the French courts and the ECtHR on the other. The rights and limitations being applied are essentially the same. The narrowest explanation of the difference is that the HRC just reached a different position in terms of a factual assessment of how the restrictions would practically affect identification issues and the continuing nature of the interferences. It considered that the French explanations of the identification difficulties in both cases were unconvincing. Another explanation is that the HRC just took a stricter view on the proportionality of the measures. If so, it is disconcerting for States that what one international human rights institution unanimously (7 judges) considers proportionate, another unanimously considers disproportionate. A final explanation for the conflicting jurisprudence is that the ECtHR afforded the State an MoA that the HRC does not and the actual effect is to lower human rights standards as feared by critics of the MoA. Consistent with its established jurisprudence, neither of the HRC's views made any reference to any MoA.
What is unhelpful is that we can only speculate on these possible explanations. Given that France had specifically raised the issue of divergent interpretations, much more by way of explanation and reasoning should be expected from the HRC, in particular in relation to its assessment of proportionality. In particular it might have been thought important to discuss other States' practices. In Mann Singh before the HRC the author claimed, inter alia, that ‘most European countries and others such as Australia, Canada, New Zealand and the United States of America, which have the same concerns as France regarding security and fraud, allow religious symbols to be worn on the head in identity photographs. France is the only country of the European Union that requires passport photographs to be bareheaded.’Footnote 230 Such a discussion might have suggested that the HRC considered that the ECtHR should have found a violation even on the basis of its own approach to consensus as an aspect of the MoA.Footnote 231 Or at least the ECtHR would have been expected to have explained why such a consensus was not regarded as determinative, as in SAS v France.Footnote 232
2. Regulation of religious dress in schools
Even more striking is the divergent jurisprudence on the regulation of religious dress in schools.Footnote 233Ranjit Singh v France Footnote 234 and Jasvir Singh v France Footnote 235 concerned pupils in schools wearing a keski (a small light piece of material of a dark colour, substituting for a turban) while Aktas v France Footnote 236 and three other casesFootnote 237 concerned Muslim pupils wearing a bonnet (substituting a headscarf). The cases challenged a French Law of 15 mars 2004, (loi no 2004-228) entitled ‘en application du principe de laïcité, le port de signes ou de tenues manifestant une appartenance religieuse dans les écoles, collèges et lycées publics’. The law prohibited ‘le port de signes ou tenues par lesquels les élèves manifestent ostensiblement une appartenance religieuse’. In 2009 the ECtHR declared the claims of all these applicants manifestly ill-founded in similar inadmissibility decisions. The decisions were based on the detailed reasoning used in 2008 judgments of Dogru v France and Kervanci v France Footnote 238 concerning pupils who were prohibited to wear a headscarf during sport education classes. In these cases, the ECtHR referred to earlier judgments in which it held that it was for the national authorities, in the exercise of their MoA, to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In the ECtHR's view, that concern did indeed appear to have been answered by the French secular model.Footnote 239 Having regard to the MoA which must be left to the Member States with regard to the establishment of the delicate relations between the Churches and the State, religious freedom recognized and restricted by the requirements of secularism appeared legitimate in the light of the values underpinning the ECHR.Footnote 240 The conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable. The penalty imposed was merely the consequence of the applicant's refusal to comply with the rules applicable on the school premises—of which she had been properly informed—and not of her religious convictions, as she alleged.Footnote 241 In the five cases in 2009 the ECtHR saw no reason to deviate from this case law even though the scope of the 2004 prohibition legislation was wider than a prohibition on wearing headgear in sport education classes. The fact that the national authorities considered that more ‘discrete’ headgear such as a keski instead of a turban and a bandana or bonnet instead of a headscarf that the applicants wore still came within the prohibition in the national legislation came within the State's MoA. The reasoning of the national authorities was not unreasonable.Footnote 242
The HRC has taken completely the opposite view to the same issue.Footnote 243 In Bikramjit Singh v France,Footnote 244 decided in 2013, BS had been denied access to his classes at school because of the wearing of a keski, in place of a turban. The decision was based on the 2004 French legislation considered by the ECtHR in Dogru and the other French cases noted above. Initially BS had to sit in the school's canteen to study on his own. After a short period of dialogue between the school authorities and BS's family, the school expelled BS from school since he refused to comply with the school's demand to remove his keski in the school premises. Interestingly both BS and the State made reference to the idea of a State having an MoA.Footnote 245 France cited the case law of the ECtHR, specifically the Dogru and Kervanci cases, which allowed States parties to the ECHR some room for manoeuvre. It submitted that this reflected the ECtHR's intention to take account of choices, particularly constitutional and legislative choices, made by States attached to the principle of secularism, while monitoring observance of the rights and freedoms protected by the ECHR.Footnote 246
Again the HRC asserted that it was responsible for deciding whether any limitation was necessary and proportionate to the end sought, as defined by the State. The HRC recognized that the principle of secularism (laïcité) was itself a means by which a State may seek to protect the religious freedom of all its population, and that the adoption of Act No. 2004-228 responded to actual incidents of interference with the religious freedom of pupils and sometimes even threats to their physical safety. Therefore, it considered that Act No. 2004-228 served purposes related to protecting the rights and freedoms of others, public order and safety. Moreover, the HRC noted that the regulation was adopted in response to certain contemporary incidents. The HRC also noted S's statement, not challenged by the State, that for Sikhs, males, wearing a keski or turban was not simply a religious symbol, but an essential component of their identity and a mandatory religious precept. It also noted the State's explanation that the prohibition of wearing religious symbols affected only symbols and clothing which conspicuously display religious affiliation did not extend to discreet religious symbols and the Council of State took decisions in this regard on a case-by-case basis. However, the HRC was of the view that the State had ‘not furnished compelling evidence that, by wearing his keski, S would have posed a threat to the rights and freedoms of other pupils or to order at the school’.Footnote 247 It was also of the view that the penalty of the pupil's permanent expulsion from the public school was disproportionate and led to serious effects on the education to which S, like any person of his age, was entitled in the State.Footnote 248 It was not convinced that expulsion was necessary and that the dialogue between the school authorities and the author truly took into consideration his particular interests and circumstances. Moreover, the State imposed this harmful sanction on S, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct.Footnote 249 In this regard, the HRC noted the State's assertion that the broad extension of the category of persons forbidden to comply with their religious duties simplified the administration of the restrictive policy. However, in the HRC's view, the State had not shown how the sacrifice of those persons’ rights was either necessary or proportionate to the benefits achieved. For all these reasons, the HRC concluded that the expulsion of the author from his lycée was not necessary under Article 18(3), infringed his right to manifest his religion and constituted a violation of Article 18.Footnote 250
Distinguishing the approaches of the ECtHR and the HRC is even more difficult in these cases. They appear manifestly inconsistent on the same issue. Again there is no reference to the MoA by the HRC. One commentator has been supportive of the HRC's approach:
While the ECtHR views the cases merely in light of the interests of the State, the UN Committee balances the arguments of all parties in a more convincing way, taking the fundamental rights of the applicants seriously all the while acknowledging the State's interests. Hence, with this case the UN Committee gives again a clear signal that a general principle such as secularism, however important, cannot blindly trump individuals’ rights, such as the right to freedom of religion, without looking at the particularities of the case.Footnote 251
Such an approach places great weight on the individuals’ rights against those of the wider community represented by the State. When restrictions are imposed on the basis of general principles such as secularism it is impossible for the State to provide compelling evidence that, by wearing his keski, S would have posed a threat to the rights and freedoms of other pupils or to order at the school or that his personal conduct created any concrete risk.Footnote 252 That is too individualistic an approach and would fail in the vast majority of cases. The threat comes not from the single individual but from the combined effect of all the religious individuals concerned.Footnote 253 As the ECtHR has observed, concessions on the part of individuals or groups of individuals can be justified in order to maintain and promote the ideals and values of a democratic society.Footnote 254 Arguing that a general principle such as secularism ‘blindly trumps’ an individual's rights does not give proper weight and appreciation to a general principle that, as both the ECtHR and HRC have accepted, seeks to protect the religious freedom of all its population. It is submitted that the lack of reasoning and explanation of the HRC do not do justice to this issue.Footnote 255 Again it also puts the State concerned, France, and other States relying on the established jurisprudence of the ECtHR in a very difficult position. If the HRC is clearly aware that it is disagreeing with the established jurisprudence of the ECtHR, or any other regional human rights body, it surely has some responsibility to provide a detailed justification for that. It is notable that France has taken no action to action taken to implement the HRC's recommendations on remedies for the violations it found in Ranjit Singh v France, Mann Singh v France and Bikramjit Singh v France.
The terms of OP1 mean that individuals can go to the HRC after their case has been considered by the ECtHR unless the State has made a reservation to OP1 to preclude this.Footnote 256 One of the consequences of fundamental divergences in interpretation is that individuals may do exactly that. Or they may simply go to the HRC rather than to the ECtHR, even though the result is a non-legally binding view rather than a legally binding judgment.Footnote 257
IX. EXPLANATIONS FOR THE NON-USE OF THE CONCEPT OF THE MARGIN OF APPRECIATION BY THE HUMAN RIGHTS COMMITTEE
There are a range of possible explanations.
A. Protecting the Universality of Human Rights
The Preambles to both the ICCPR and the ECHR refer back to the Universal Declaration of Human Rights (1948). So the simplest explanation of non-use of the MoA is that it is a threat to the universality of human rights.Footnote 258 As such, the threat should not be supported or encouraged. The risk of expressly acknowledging the existence of an MoA would be that States would inevitably seek support from it to validate a diminishing and variable normative content for international human rights. Admitting an MoA doctrine ‘might prompt some States to rely on arguments of “cultural relativism”, however ill-defined or inappropriate in the circumstances of a given case, or seek to justify serious human rights abuses’.Footnote 259 Whilst the risk is comprehensible the explanation depends on a rather simplistic and unreal conception of universality.Footnote 260 The critical prior question is to determine the scope of the obligations under the substantive ICCPR rights. Although human rights are universal in the sense of imposing some minimum fundamental standards, universalism does not operate by means of uniform, harmonized rules which cannot be varied.Footnote 261 This is true with respect both to the protection of rights and remedies. Once the scope of the obligations has been established then the requirements under Article 2 to respect and ensure ICCPR rights are unqualified and of immediate effect. A failure to comply with this obligation cannot be justified by reference to political, social, cultural, and economic considerations or by traditional, historical, religious or cultural attitudes within the State.Footnote 262
B. Anti-Eurocentrism
A second explanation of non-use of MoA by HRC lies in the MoA's association with the ECHR system. A number of members of the HRC have also been members of the ECtHR or the European Commission on Human Rights.Footnote 263 Particularly in its first decades the HRC did not want to appear to be Eurocentric in approach. That may have been a sensitive political explanation for the early practice of the HRC but as it matured it had to determine the jurisprudential approach that was appropriate in principle, irrespective of where it had been used or was associated with. Of the 47 States parties to ECHR, 46 are also parties to the ICCPR (the only exception is Moldova). Many of them have accepted OP1 and argued before the HRC that decisions of the ECtHR or at least its jurisprudential approach, based on an application of the MoA (or a margin of discretion),Footnote 264 should be followed.Footnote 265 For example, in BWMZ v Netherlands Footnote 266 the State submitted observations on admissibility and merits. It recalled the decision of inadmissibility adopted by the ECtHR and asked the HRC, for reasons of legal certainty, to take a similar approach, that was, to declare that the communication was inadmissible or that it did not constitute a violation of the Covenant. Otherwise, the State would be confronted with contradictory rulings by two international supervisory bodies on an identical issue.Footnote 267 In other cases States have argued for an MoA even when there is no equivalent ECHR jurisprudence.Footnote 268 Thus in MB v Czech Republic Footnote 269 the State argued that the legislator possessed an MoA within which it could lay down citizenship requirements on the part of applicants requesting the surrender of property.
So anti-Eurocentrism may be a sensitive political and comparative explanation but it is not a sensible justification. The crucial issue is to determine whether the concept of the MoA is jurisprudentially sound or not. On the basis of the comparisons in Section VII above it is submitted that it is. Not only would it not be Eurocentric to afford an MoA to States parties to the ICCPR, it would rather be a sensitive response to criticisms of the purported universality of international human rights.
C. Misunderstanding of the MoA
A third possible explanation for non-use of the MoA by the HRC is that there may be a misunderstanding of the MoA and how it operates. If there is an interference with a right but it is justified then there is no violation.Footnote 270 If it is justified only because it is held to fall within the MoA for the State concerned the same analysis applies. That a situation falls within the MoA simply means there is no violation of the ECHR. It is not a justified or excused violation. The crucial point for the State is to ensure that it does not fall outside the acceptable margin.
The HRC maintains that it does not afford States an MoA. It can thus be seen that the critical issue is ultimately the point at which the violation is determined to be.Footnote 271 On this analysis the significance of the ECtHR's use of the MoA is as an explanatory or justificatory device for where that point of violation should be located. Assume that there is a case concerning essentially the same right and permissible limitations under both the ECHR and the ICCPR. Both the ECtHR and the HRC determine that there is no violation. The ECtHR says it falls within the States MoA so there is no violation, while the HRC simply states there is no violation. The end result is the same. However, via the MoA the ECtHR can offer States more guidance and explanatory reasoning to States in terms of how close the State is or is not to violating the ECHR. Thus in the series of cases concerning transsexuals the ECtHR warned the UK that it had to stay abreast of scientific research and understanding and respond accordingly with legislative review.Footnote 272
If the MoA was being used by the ECtHR to justify what the HRC would consider to be violations of the equivalent rights in the ICCPR then it would of course be problematic.Footnote 273 However, as submitted, this misunderstands the role and function of the MoA.
D. The Non-Use of MoA by HRC Is Rhetorical
A fourth possible explanation is that the HRC's opposition to the MoA is just rhetorical and the HRC has, as James Crawford once suggested, been ‘speaking silently the language of the margin’.Footnote 274 In a famous early case in 1982, Hertzberg v Finland Footnote 275 the HRC expressly used the MoA. The case concerned restrictions on expression justified by reference to public morals. The HRC stated that, ‘public morals differ widely. There is no universally applicable moral standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities.’Footnote 276 That remains the only express use of the MoA by the HRC. However, in practice the HRC does recognize that there can be differences between States and flexibility in the interpretation of ICCPR rights and remedies. The national context of the case can be critical to an assessment of whether rights have been violated.Footnote 277 For example, the legal protection or measures a society or a State can afford to the family can vary from country to country and depend on different social economic, political and cultural conditions.Footnote 278 Similarly, the concept of the ‘family’ can differ in some respects from State to State.Footnote 279
As noted, the HRC has been clear that there is no MoA for States with respect to the determination of whether a member of a minority has been denied his right to enjoy his own culture under Article 27.Footnote 280 However, it has accepted that measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a ‘denial’ of the right under Article 27.Footnote 281 States have thereby been afforded considerable room to authorize economic developments that have had an impact on Article 27 rights.Footnote 282 Where the ECtHR has had to consider similar issues, although framed within the context of Article 8 ECHR (private life), as in Noack v Germany Footnote 283 it has essentially analysed the same issues. It has looked at legitimate aim, necessity, proportionality, impact and stressed the importance of deliberative processes, consultation and continuing protection. Its conclusions reference the MoA but the substance of the approach is arguably the same.Footnote 284 So it could be that HRC effectively affords States an MoA, but it just does not use the rhetorical language of the MoA.Footnote 285 If so, it is offering States less guidance and explanatory reasoning to States than the ECtHR in terms of how close the State is or is not to the point of violating the ICCPR.
E. Lack of Trust in Decisions Made by States Parties
A fifth explanation might proceed along supposedly undiplomatic but realpolitik lines. European States have accepted substantial inroads into their sovereignty via the now compulsory jurisdiction of the ECtHR (and the even greater inroads via membership of the European Union). In return, so the argument goes, the ECtHR can afford States parties an MoA because it can trust their national authorities to take democratically based decisions.Footnote 286 Decisions in many States in Europe are indeed reached on the basis of commendable democratic processes. Their functioning democratic basis is undoubtedly stronger than in other parts of the world. Three articles of the ICCPR (14, 21 and 22) specifically refer to restrictions which can be imposed in a ‘democratic society’. However, to only apply the MoA on the precondition of a functioning democracy would be problematic. It is Eurocentric and rather condescending. The ECtHR has a massive caseload and continues to find many democratic States to have violated fundamental rights in the ECHR, including non-derogable rights. Many findings of violation of the ECHR are based on a lack of proportionality in the democratically adopted measures. Classification into democratic and non-democratic States would be difficult in the absence of universally accepted indicators.Footnote 287 But on any basis there are now many functioning democracies outside of Europe. Some diversity between in the ranges of national decisions in their interpretation of rights, each carrying degrees of democratic legitimacy, would be a normal consequence. To not afford a degree of deference via the MoA to those decisions because of the undemocratic nature of previous regimes or undemocratic regimes in other States seems indefensible. Moreover, a condition of democracy in a State is reached via transition and process. Indeed, democratic standards continue to vary considerable across the members of the Council of Europe, particularly after the expansion eastwards.Footnote 288
Moreover, non-European States are, arguably, even more fiercely defensive of their sovereignty and their domestic jurisdiction than European States. They may also be members of regional organizations but their monitoring and enforcements systems are generally weaker than under the ECHR. Basing an MoA on trusting the democratic credentials of States would create a real risk of double standards. States have the primary responsibility to protect international human rights. States should be able to have their human rights defences, for example based on necessity, proportionality, practicability, resources—indeed all of the kinds of issues looked at by the HRC—and judged on the merits, without any preconceptions of lack of trust or lack of democratic credentials. There is also the question of what to do with the 46 European democracies that are also parties to both the ECHR and the ICCPR. Presumably there is no question of having a differentiated approach for them or for other States adjudged, a priori, to have high democratic standards.Footnote 289 Of course, in assessing an individual case, considerable weight could be afforded to exacting and pertinent reviews, by both parliamentary and judicial bodies. But that is just a matter of evidential weight. The more States take account of human rights standards in coming to a decision the more likely it is that they will comply with those standards.
X. CONCLUDING COMMENTS: TOWARDS A UNIVERSAL APPLICATION OF THE MARGIN OF APPRECIATION
It is submitted that when properly understood the MoA is a complex, sophisticated and defensible intellectual instrumentFootnote 290 for international bodies supervising polycentric rights claims.Footnote 291 It is like a multi-dimensional chess game in which a lot of pieces are in play along a number of axes. The MoA factors may combine and interact in different ways, sometimes pulling in different directions in the context of a single case. This complexity and uncertainty may not satisfy jurisprudential purists or pure universalists. But if it represents a sensible pragmatic legal doctrine for a system applying to 47 States and over 820 million people, then why not to a system applying to 168 States and something close to six billion people. The consequence of affording States an MoA is that an acceptable and human-rights-compliant overall balance can be achieved in a number of ways. Thus conceived the MoA plays a crucial role in building a complex multi-level community amongst the 47 Council of Europe States. It could play the same role for wider community of States parties to the ICCPR.
We have considered various explanations for the lack of use of MoA by HRC.Footnote 292 Views will differ on their validity and credibility. Some of the explanations appear more political than legal. However, in terms of harmonization of international human rights law, it remains problematic that the central conceptual doctrine in the ECHR institutional and jurisprudential architecture is ignored by the HRC. In doing so it is submitted that they deprive themselves of a credible and defensible intellectual instrument for making human rights determinations. The MoA could assist the HRC to mediate between the idea of universal human rights and leaving space for reasonable disagreement, legitimate differences, and national or local cultural diversity.Footnote 293 It would thus represent a principled response to many of the Third World critiques of Eurocentrism and universalism.Footnote 294 If the refusal is rhetorical rather than substantive, it is submitted that it would be better if they openly acknowledged the doctrine. But on the evidence of its consistent practice, the HRC's refusal to afford States a MoA, is viewed as substantive rather than rhetorical. At the very least, as a universal human rights body, the HRC should be obliged to explain and justify in the clearest terms jurisprudence which knowingly departs from regional standards.Footnote 295 If the ECtHR, which applies an MoA, still attracts charges of human rights imperialism and an anti-democratic critique,Footnote 296 the HRC would appear to leave itself open for even greater criticism on that account.
On the basis of the evidence and arguments considered in this article it is submitted that the central justifications for the MoA under the ECHR considered in Section IV of this article—subsidiarity, democratic societies and democratic legitimation, institutional competence and comity, and the purpose of establishing minimum rather than harmonized (international as distinct from regional) human rights standards apply with equal if not greater force to the ICCPR. Thus the HRC should afford States parties an MoA. If anything, one might have thought that, given the greater diversity of 168 States parties across the world, as compared to the relative homogeneity of the members of the Council of Europe,Footnote 297 there was an even stronger case for the HRC applying the MoA than the ECtHR. Both logically, empirically and intuitively, a mechanism at an international level needs to have more flexibility than one at any regional one. If the universal system imposed higher universal standards, because it does not allow States an MoA, it makes the regional systems appear problematic.Footnote 298 This is because regional systems are not seen as a challenge to universal human rights as long as they have higher minimum standards than the universal ones.Footnote 299 The HRC also has to accommodate a greater plurality of legal orders based on elements of religious and customary lawFootnote 300 and a large number of complex federal-type States and multiple variations thereof.
Obviously there would be some issues of concern in affording States parties to the ICCPR an MoA which can be affected by presence or absence of consensus. First, the much larger number of States concerned (168 parties to ICCPR as compared to 47 parties to ECHR). Second, the even greater massive political, social, economic and legal disparities between them than between members of the Council of Europe. Third, the risk that State consensus might not reflect the rights of sub-State groups and communities.Footnote 301 Fourth, there is arguably a greater risk or likelihood that the MOA doctrine could be used more to confirm prevailing social norms than to challenge them.Footnote 302 Fifth, the HRC, and the Treaty Bodies generally, are more politicized in their composition than the ECtHR. This could be the underlying reason why there is a reluctance to create space for MoA reasoning since it is more liable to be abused. The pressure of the broader political framework within the UN is still very strong and allowing an MoA might then become a problem in that context. Unless its application is clearly reasoned and articulated, its use might also increase perceptions of bias and politicization. These are issues to which States have been and continue to be particularly sensitive.Footnote 303
To an extent some of these difficulties were faced with and dealt by the ECtHR as the scope of the ECHR expanded eastwards. Moreover, some of these difficulties may be inherent in a universal system and so can't be avoided. Moreover, it is submitted that the MoA is a sufficiently sophisticated and flexible instrument of supervision to take account of these risks. As noted, its application can be sensitive to special historical or political considerations, the relative importance of the interest at stake, sensitive moral or ethical issues, the balancing of private and public interests, and complex scientific and technical issues. Assessing all of these kinds of factors cannot be avoided so their explicit acknowledgement would make for more open and transparent reasoning. Finally, it remains to note that many of the arguments considered in this article would apply with equal force to the Inter-AmericanFootnote 304 and African regional human rights systems.Footnote 305 In neither of those regional human rights systems has the concept of affording States parties an MoA been explicitly embraced.
