1 Yutaka ARAI-TAKAHASHI, The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR 2 (2002); see also Thomas A. O'Donnell, The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights, 4 Human Rights Quarterly 474, 475 (1982) (“[w]hile difficult to define, the margin of appreciation refers to the latitude allowed to the member states in their observance of the Convention”).Google Scholar

2 See Benvenisti, Eyal, Margin of Appreciation, Consensus, and Universal Standards, 31 International Law and Politics 843 (1999).Google Scholar

3 Ireland v. UK, App. No. 5310/71, at para. 207 (Jan. 18, 1978), http://cmiskp.echr.coe.int/tkp197/view.asp?item=9&portal=hbkm&action=html&highlight=ireland%20%7C%20v.%20%7C%20united%20%7C%20kingdom&sessionid=1119211&skin=hudoc-en.Google Scholar

4 As examined below, the existence or non-existence of a “European consensus” is a major criterion for Strasbourg organs in determining the need or scope of the margin of appreciation.Google Scholar

5 Macdonald, R. St. J., The Margin of Appreciation, in The European System for the Protection of Human Rights 83 (R. St. J Macdonald, F. Matcher, H. Petzold eds., 1993); see also Takahashi, , supra note 1, at 2-3.Google Scholar

6 In Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, where discriminatory legislation targeting married Mauritian women was under consideration, the Human Rights Committee underlined the margin of states in regulating family life: “…the legal protection or measures a society or a State can afford to the family may vary from country to country and depend on different social, economic, political and cultural conditions and traditions.” Communication No. R.9/35 (2 May 1978), U.N. Doc. Supp. No. 40 (A/36/40) at 134 (1981), para. 9.2(b)2(ii), available at http://wwwserver.law.wits.ac.za/humanrts/undocs/session36/9-35.htm.Google Scholar

7 See Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 (Jan. 19 1984) Inter-American Court of Human Rights (Ser. A) No. 4, paras. 56-59.Google Scholar

8 Due to the limited scope of the paper, the application of margin of appreciation to other Convention rights is not examined. However, for a comprehensive analysis of the doctrine see Howard Charles Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996); see also Takahashi, supra note 1.Google Scholar

9 Benvenisti, , supra note 2, at 845.Google Scholar

10 Greece v. United Kingdom, App. No. 176/56, 2 Yearbook European Commission on Human Rights 174 (1959).Google Scholar

11 Id.; Pietr van Dijk, Theory and Practice of the European Convention on Human Rights 84 (3rd ed., 1998).Google Scholar

12 Lawless v Ireland, App. No. 332/57, 2 Yearbook European Commission on Human Rights 318 (1960); see also Michael O'Boyle, The Margin of Appreciation and Derogation under Article 15: Ritual Incantation or Principle?, 19 Human Rights Law Journal 23, 24 (1998).Google Scholar

13 Lawless, supra note 12, at paras. 28-30; Ronald Macdonald, a former judge of the European Court, notes that: “it is possible to say that the margin is probably at its widest when the Court is considering whether derogations are strictly required at a time of grave public emergency and at its narrowest when there is alleged violation of a person's very private and personal life.” Ronald J. MacDonald, The Margin of Appreciation in the jurisprudence of the European Court of Human Rights, in International Law at the Time of its Codification: Essays in Honor of Roberto Ago 187, 207 (1987).Google Scholar

14 Ireland, supra note 3.Google Scholar

15 Ireland, supra note 3, at para. 207.Google Scholar

16 See Brannigan and McBride v. the United Kingdom, App. No. 14553/89, at para. 43 (May 26, 1993), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=brannigan%20%7C%20mcbride&sessionid=1119576&skin=hudoc-en.Google Scholar

17 See Gross, Oren and Aolain, Fionnuala Ni, From Discretion to Scrutiny: Revisiting the Application of the Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights, 23 Human Rights Quarterly 625, 633 (2001).Google Scholar

18 See Hutchinson, Michael R., The Margin of Appreciation Doctrine in the European Court of Human Rights, 48 The International and Comparative Law Quarterly 638 (1999).Google Scholar

19 Belgian Linguistic Case, App. No. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 (July 23, 1968), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Belgian%20%7C%20linguistic%20%7C%20case&sessionid=1119576&skin=hudoc-en.Google Scholar

20 Id. at para. 5.Google Scholar

21 De Wilde, Ooms & Versyp v. Belgium, App. No. 2832/66; 2835/66; 2899/66 (Jul. 18, 1971), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=De%20%7C%20Wilde&sessionid=1126384&skin=hudoc-en.Google Scholar

22 Id. at para. 93.Google Scholar

23 Handyside v. United Kingdom, App. No. 5493/72, at paras. 48-49 (Dec. 7, 1976), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Handyside&sessionid=1119576&skin=hudoc-en.Google Scholar

24 Takahashi, supra note 1, at 7.Google Scholar

25 Handyside, supra note 23, at para. 49.Google Scholar

26 Handyside, supra note 23, at para. 48.Google Scholar

27 In Cossey, Judge Martens, in his dissenting opinion, rightly points out that “in my opinion States do not enjoy a margin of appreciation as a matter of right, but as a matter of judicial self-restraint. Saying that the Court will leave a certain margin of appreciation to the States is another way of saying that the Court - conscious that its position as an international tribunal having to develop the law in a sensitive area calls for caution - will not fully exercise its power to verify whether States have observed their engagements under the Convention, but will find a violation only if it cannot reasonably be doubted that the acts or omissions of the State in question are incompatible with those engagements. It is, therefore, up to the Court to decide, in every case or in every group of cases, whether a “margin of appreciation” should be left to the State and, if so, how much….” Cossey v. United Kingdom, App. No. 10843/84, at para 3.6.3 (Aug. 29, 1990), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Cossey&sessionid=1119576&skin=hudoc-en; see also Schokkenbroek, supra note 32, at 31.Google Scholar

28 Handyside, supra note 23.Google Scholar

29 See Hutchinson, supra note 18, at 647.Google Scholar

30 Macdonald, supra note 5, at 123.Google Scholar

31 See Takahashi, supra note 1, at 237.Google Scholar

32 See Jeroen Schokkenbroek, The Basis, Nature and Application of the Margin of Appreciation Doctrine in the Case-Law of the European Court of Human Rights, 19 Human Rights Law Journal 30, 31 (1998).Google Scholar

33 Belgian Linguistic Case, supra note 19.Google Scholar

34 Belgian Linguistic Case, supra note 19, at para. 10.Google Scholar

35 Handyside, supra note 23, at para. 48.Google Scholar

36 Handyside, supra note 23, at para. 49.Google Scholar

37 Handyside, supra note 23, at para. 48.; see also Clare Ovey and Robin C.A. White, European Convention on Human Rights 285-86 (2002).Google Scholar

38 See Donna Gomien, Short Guide to the European Convention on Human Rights 78 (1998).Google Scholar

39 Such as Article 8, 9 and 11 of the Convention, Article 1 of Protocol No. 1, Article 2 of Protocol No. 4 and Article 1 of Protocol No. 7. See Donna Gomien, David Harris and Leo Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter 273 (1999).Google Scholar

40 See Kevin Boyle, Freedom of Expression and Restriction on Freedom of Expression, in Asia-Europe Intergovernmental Human Rights Workshop 2 (Unpublished, 2002).Google Scholar

41 See Ovey, and White, , supra note 37, at 278.Google Scholar

42 Ovey, and White, , supra note 37, at 278; see also Olsson v. Sweden, App. No. 00010465/83, at paras. 67-68 (Mar. 24, 1988), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Olsson&sessionid=1119576&skin=hudoc-en.Google Scholar

43 Observer and Guardian v. The United Kingdom, App. No. 13585/88 (Nov. 26, 1991), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Observer%20%7C%20Guardian&sessionid=1119576&skin=hudoc-en.Google Scholar

44 Id. at para 59.Google Scholar

45 The Sunday Times v. United Kingdom, App. No. 6538/74 (Apr. 26, 1979), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Sunday%20%7C%20Times&sessionid=1119576&skin=hudoc-en.Google Scholar

46 Id. at para. 65.Google Scholar

47 Id.; see also Boyle, supra note 40, at 2.Google Scholar

48 Handyside, supra note 23.Google Scholar

49 Handyside, supra note 23, at para. 48.Google Scholar

50 For more information about the relationship between democracy and freedom of information see Boyle, Kevin, Freedom of Expression and Democracy, in Human Rights a European Perspective 211-19 (Liz Heffernan and James Kingston eds., 1994).Google Scholar

51 See Ovey, and White, , supra note 37, at 280.Google Scholar

52 See Dijk, and Hoof, , supra note 11, at 85.Google Scholar

53 In this context, Yves Winisdoerffer asserts that “…One may, on the basis of the existing case-law, regret that the Court does not carry out more thorough examination of the purpose of contested interferences with the right guaranteed… The doctrine of the margin of appreciation also contributes to the difficulty of evaluating where to situate the bounds of Article… The Contracting States as well as individual applicants who come before the Court are the hostages of a case-by-case assessment, the outcome of which is difficult to predict….” Yves Winisdoerffer, Margin of Appreciation and Article 1 of Protocol No. 1, 19 Human Rights Law Journal 18, 20 (1998).Google Scholar

54 See Ignacio de la Rasilla del Moral, The Increasingly Marginal Appreciation of the Margin-of-Appreciation Doctrine, 7 German Law Journal 611, 622 (2006).Google Scholar

55 See id. at 615-16.Google Scholar

56 Takahashi, , supra note 1, at 102.Google Scholar

57 See Dijk, and Hoof, , supra note 11, at 87.Google Scholar

58 de la Rasilla del Moral, supra note 54, at 617.Google Scholar

59 See Ovey, and White, , supra note 37, at 285-86. However, the said European consensus criterion was subjected to criticism on different accounts, including the argument that the concept of European consensus was based on an insufficient comparative research, or that “by tying itself to a positivist conception of standards,” the Court is abandoning its supervisory role. See Moral, supra note 55, at 617.Google Scholar

60 Denmark, Rasmussen v., App. No. 8777/79, at para. 40 (Nov. 28, 1984), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Rasmussen&sessionid=1119576&skin=hudoc-en.Google Scholar

61 See George Letsas, Two Concepts of the Margin of Appreciation, 26 Oxford Journal of Legal Studies 705 (2006). Gross and Aolain argue that in emergency situations national authorities should not be granted a wide margin of appreciation on the assumption that they are in a better position than the international judge. They convincingly note that “a crisis mentality can seize a whole nation and transform an otherwise peaceful community into a ‘nation in arms.’ In the process, constitutional structures may be ignored. Governmental efficiency and expediency become paramount, and fundamental constitutional principles may come tumbling down when the trumpets of emergency blow.” Therefore, in the application of Article 15 of the Convention, the Court must accord the narrowest margin to the derogating state. See supra note 17, at 639-43. However, as the Court made it clear on several occasions when it exercises its supervision the Court gives “appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.” See Brannigan and McBride, supra note 16, at para. 43.Google Scholar

62 Schokkenbroek, Jeroen, The Prohibition of Discrimination in Article 14 of the Convention and the Margin of Appreciation, 19 Human Rights Law Journal 20, 21 (1998).Google Scholar

63 Austria, Lingens v., App. No. 9815/82 (July 8, 1986), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Lingens&sessionid=1119576&skin=hudoc-en.Google Scholar

64 Id. at para. 42.Google Scholar

65 Castells v. Spain, App. No. 11798/85 (Apr. 23, 1992), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Castells&sessionid=1119576&skin=hudoc-en.Google Scholar

66 Id. at para. 46.Google Scholar

67 See Lingens, supra note 63, at para. 41; see also Castells, supra note 65, at para. 43. The incidents followed the publications of the cartoons of Muhammad in the Danish newspaper, Jyllands-Posten, showing how elusive the demarcation between freedom of speech/press and hate speech could be. For a detailed analysis see Robert Post, Religion and Freedom of Speech: Portraits of Muhammad, 14 Castellations 72 (2007). See also Eric Heinze, Viewpoint Absolutism and Hate Speech, 69 The Modern Law Review Limited 543 (2006).Google Scholar

68 Goodwin v. United Kingdom, App. No. 17488/90 (Mar. 27, 1996), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Goodwin&sessionid=1126384&skin=hudoc-en.Google Scholar

69 Id. at para. 39; for more information on press freedom see Janice Brabyn, Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions, 69 The Modern Law Review Limited 895 (2006).Google Scholar

70 See Ovey, and White, , supra note 37, at 288.Google Scholar

71 See Denmark, Barfod v., App. No. (Feb. 22, 1989), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Barfod&sessionid=1126384&skin=hudoc-en.Google Scholar

72 Worm v. Austria, App. No. 83/1996/702/894 (Aug. 29, 1997), http://cmiskp.echr.coe.int/tkp197/view.asp?item=9&portal=hbkm&action=html&highlight=Austria&sessionid=1126384&skin=hudoc-en.Google Scholar

73 Id. at para. 49; see also Takahashi, supra note 1, at 119.Google Scholar

74 Sunday Times, supra note 45.Google Scholar

75 Sunday Times, supra note 45, at para. 59.Google Scholar

76 This approach is also in line with Article 17 of the Convention which reads “[n]othing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”Google Scholar

77 For a detailed study on hate speech see generally Kevin Boyle, Ensuring freedom, ensuring protection: Guarding against hate speech in human rights law and national European legislation (Nov. 27, 2003), http://www.smed .no/konferanse03/boyle.doc; see generally Eric Barendt, Freedom of Speech (2001).Google Scholar

78 Societies take different measures to respond hate speech in accordance with their historical experiences. As a result of the Second World War, the European approach towards free speech and its limitations is considerably different from that of the United States. Following the horrors of the Holocaust, European States have been more vigilant against the harm that might emerge out of an unleashed form of speech. For instance, denial of the Holocaust has been an important problem in Europe. Consequently, certain European countries have enacted legislation prohibiting and criminalizing such speech, the legitimacy of which was accepted by the Strasbourg organs. See Jonathan Cooper, Hate Speech, Holocaust Denial and International Human Rights Law, 1999 European Human Rights Law Review 593, 596 (1999). In the United States, on the other hand, hate speech is regarded as a price society has to pay to safeguard freedom of expression—it is a form of speech that falls under the protection of the First Amendment. See Stephan L. Newman, Liberty, Community, and Censorship: Hate Speech and Freedom of Expression in Canada and the United States, 32 American Review of Canadian Studies 369 (2002).Google Scholar

79 Kuhnen v. Federal Republic of Germany, 56 European Commision on Human Rights Decisions and Reports 205 (1988).Google Scholar

80 Jersild v. Denmark, App. No. 15890/89 (Sep. 23, 1994), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Jersild&sessionid=1126384&skin=hudoc-en.Google Scholar

81 See Soren C. Prebensen, The Margin of Appreciation and Articles 9, 10 and 11 of the Convention, 19 Human Rights Law Journal 17 (1998).Google Scholar

82 Muller and Others v. Switzerland, App. No. 10737/84, at para. 16 (May 24, 1988), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Muller&sessionid=1126384&skin=hudoc-en.Google Scholar

83 Handyside, supra note 23.Google Scholar

84 Dudgeon v. The United Kingdom, App. No. (Oct. 22, 1981), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Dudgeon&sessionid=1126384&skin=hudoc-en.Google Scholar

85 Id. at para. 60.Google Scholar

86 Handyside, supra note 23.Google Scholar

87 Muller and Others, supra note 82.Google Scholar

88 Muller and Others, supra note 82, at para. 32.Google Scholar

89 Otto-Preminger-Institut v. Austria, App. No. 13470/87 (Sep. 20, 1994), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=&sessionid=1126384&skin=hudoc-en.Google Scholar

90 “The protection of the rights and freedom of others” and “public order” also constituted the main focus in two controversial headscarf cases, Dahlab v. Switzerland and Sahin v. Turkey. This time, however, the national authorities considered headscarf as a political/religious message which could threaten the secular structure of the states concerned as well as to the “rights of others” and “public order.” In both cases, the Court found the measures undertaken by the Swiss and Turkish governments justified under the legitimate aim of Article 9 (2). Again, the Court accorded a broad margin of appreciation partly because there was little or no European consensus as to whether the right to wear headscarf was within the right to religious freedom. See Leyla Sahin v. Turkey, App. No. 44774/98 (June 29, 2004), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Leyla%20%7C%20Sahin&sessionid=1126384&skin=hudoc-en; Dahlab v. Switzerland, App. No. 42393/98 (Feb. 15, 2001), http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=42393/98&sessionid=1126384&skin=hudoc-en. For a detailed analysis of the cases see Ostrovsky, Aaron A., What's So Funny About Peace, Love, and Understanding?: How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals, 1 International Law 47, 54-56 (2005).Google Scholar

91 Id. at para. 49.Google Scholar

92 See Lord Lester of Herne Hill, Universality versus Subsidiarity: A Reply, 1998 European Human Rights Law Review 73, 76 (1998).Google Scholar

93 See D. J. Harris, M. O'Boyle, C. Warbrick, Law of the European Convention on Human Rights 377 (1995).Google Scholar

94 See Mahoney, Paul, Marvellous Richness of Diversity or Invidious Cultural Relativism, 19 Human Rights Law Journal 1 (1998); see also Takahashi, , supra note 1, at 230.Google Scholar

95 The opponents of this doctrine claim that the usage of this doctrine undermines the very basis of human rights, since it deprives the individual of enjoying his/her rights to which he/she is entitled. Moreover, it has been used by the Strasbourg organs as a justification for their “lax review.” The unsystematic and vague nature of the doctrine was also found to be running counter to the effective implementation of Convention rights, which should be interpreted in a clear and precise manner. See Takahashi, , supra note 1, at 233; see also Shany, Yuval, Toward a General Margin of Appreciation Doctrine in International Law?, 16 European Journal of International Law 907 (2005).Google Scholar

96 Id.; “[m]argin of appreciation with its principled recognition of moral relativism, is at odds with the concept of universality of human rights.” Benvenisti, , supra note 2, at 844.Google Scholar

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98 Macdonald, supra note 5, at 123.Google Scholar

99 Some opponents of the doctrine go even further claiming that the distinction between fact-finding and application of law should be abolished, and Strasbourg organs should also intervene in the fact-finding mission. This approach seems to be problematic since it overlooks the fact that the main responsibility for guaranteeing human rights rests, in the first place, with the national authorities, and the role of the Strasbourg organs is subsidiary. Indeed, the drafters of the European Convention did not envisage the Court as a fourth instance of appeal from national court decisions. Moreover, the case-load of the Court should also be taken into account; particularly given the fact that the judgments of the Court are not delivered promptly, such a fact-finding role of the Court should only be considered in cases of extraordinary importance. See Belgian Linguistic, supra note 19, at para. 10; see also Petzold, Herbert, The Convention and the Principle of Subsidiarity, in The European System for the Protection of Human Rights 49 (R. St. J. Macdonald, F. Matscher, H. Petzold eds., 1993); Takahashi, supra note 1, at 233.Google Scholar