The Doctrine Of Marginal Appreciation

Introduction

The doctrine of marginal appreciation is associated with International human rights law. It was
initially formulated by the European court of human rights, It is related with European convention
on Human rights1. It is applied when there is conflict about the subject of rights in different
jurisdiction, when it comes to the implementation of European convention of Human Rights. It
helps the judges to root out any contradiction which arises between the European convention of
human rights and the domestic law of the partied state. It stresses the importance of individual right
and balances it with the national interest of the nation in question, Without any compromise 2. The
doctrine is framed in such a way, That it upholds the basic essence of the European Convention on
human rights. The European Convention on Human Rights is generally associated with the bill of
rights in England.

The Birth And Necessary Developments In The Doctrine

The origin of marginal appreciation takes back to “marge d’appreciation” 3. It is considered to be an

integral part of administrative law. As mentioned above it was nurtured and formulated in marge
d’appreciation4. But now a days the influence of this can be felt in other European jurisdictions as
well. It is primarily due to the influence of European Convention of Human Rights. The doctrine of
Marginal Appreciation allows national law making bodies to parties to the convention, To eliminate
any contradictions arising out of the local laws from an administrative point of view 5. The doctrine
of marginal appreciation gained its appreciation from Bendesverwaltungsgericht, Then it was
transferred to an other jurisdiction as well6.

Subject of marginal appreciation was generally applied in disputes relating to martial law. It
was drafted into the European convention in the year 1956, This was achieved due to the continuous
evolution of human rights laws in the European commission of human rights. It is not worthy to
1
De Schutter, Olivier, and Julie Ringelheim. "Ethnic Profiling: A Rising Challenge for European Human Rights
Law." The Modern Law Review 71, no. 3 (2008): 358-84. http://www.jstor.org/stable/25151207.
2
Wildhaber, Luzius. "The European Convention on Human Rights and International Law." The International and
Comparative Law Quarterly 56, no. 2 (2007): 217-31. http://www.jstor.org/stable/4498068.
3
Bruening, Michael W. The Sixteenth Century Journal 40, no. 4 (2009): 1318-319.
http://www.jstor.org/stable/40541302.
4
ibid.,
5
Singh, Parmanand. "THE EPISTEMOLOGY OF HUMAN RIGHTS: A THEORETICAL ESSAY." Journal of the
Indian Law Institute 57, no. 1 (2015): 1-26. http://www.jstor.org/stable/44782488.
6
Langlois, Anthony J. "Human Rights: The Globalisation and Fragmentation of Moral Discourse." Review of
International Studies 28, no. 3 (2002): 479-96. http://www.jstor.org/stable/20097807.
point out cyprus case7.Later it was applied in Lawless Vs Ireland8, A few years down the line it was
again applied in Belgian Linguistic Case, In the year 19689, Eventually the scope of article 15 of the
European convention was widened through this case, It also gave two more principles relating to the
application of the doctrine of marginal appreciation 10. The doctrine of marginal appreciation
evolved further more in the case of Handyside V United Kingdom11, The facts of this case revolved
around a text book for primary school students which discussed about various stages of sexual
behaviour. Although the book was a success, It was met with controversy in United Kingdom. The
publisher was booked under the charges of obscene publication and was found guilty12. This
decision was challenged in the European commission on the grounds that United Kingdom had
violated article 10 which guarantees freedom of expression through its local law.
In another decision Z V FInland 13, The court looked into the case from the prospective of
individual rights. In this case the court dealt with the subject of privacy, which relates to medical
data of the patient and it was held by the court that the publication of medical documents without
the consent of the parties is directly in violation of article 814.

Applicability & Extent Of The Doctrine Of Marginal Appreciation

The European court firmly established in the case of Handyside V United Kingdom, In this case the
court deliberated in detail the application of doctrine of marginal appreciation 15. But the application
of this doctrine in practicality is largely based on public interest as human rights is the core of this
subject. But the application of doctrine of marginal of appreciation is of important purpose
especially when it comes to emergency cases, It serves as an important tool in granting meaning to
the European convention when it is in conflict, The merit with doctrine of marginal appreciation is
that it can be applied to different scenarios and the doctrine can still stand the test of time 16.
Although the prime purpose of the doctrine was felt in martial law. But in reality it has more
7
Arbel, Benjamin. "Greek Magnates in Venetian Cyprus: The Case of the Synglitico Family." Dumbarton Oaks
Papers 49 (1995): 325-37. doi:10.2307/1291717.
8
Lee, Grace Lawless. The Huguenot Settlements in Ireland. Heritage Books, 2009.
9
Obler, Jeffrey. "Intraparty democracy and the selection of parliamentary candidates: the Belgian case." British Journal
of Political Science 4, no. 2 (1974): 163-185.
10
Moravcsik, Andrew. "The Origins of Human Rights Regimes: Democratic Delegation in Postwar
Europe." International Organization 54, no. 2 (2000): 217-52. http://www.jstor.org/stable/2601297.
11
Zoller, Elisabeth. "Foreword: Freedom of Expression: Precious Right in Europe, Sacred Right in the United
States." Ind. LJ 84 (2009): 803.
12

13
Mahoney, Jack. "The challenge of human rights: origin, development and significance." (2008).
14
Connelly, A. M. "Problems of interpretation of Article 8 of the European Convention on Human Rights." International
& Comparative Law Quarterly 35, no. 3 (1986): 567-593.
15
Zoller, Elisabeth. "Foreword: Freedom of Expression: Precious Right in Europe, Sacred Right in the United
States." Ind. LJ 84 (2009): 803.
16
Quane, Helen. "Legal Pluralism and International Human Rights Law: Inherently Incompatible,
Mutually Reinforcing or Something in Between?" Oxford Journal of Legal Studies 33, no. 4 (2013):
675-702. http://www.jstor.org/stable/24562797.
applications than just martial law. But nowadays its scope was extended to various disciplines 17. It
especially serves the purpose for interpreting European convention on human rights which is
considered to be one of the progressive human rights laws not only in Europe but throughout the
world18. The evolution of this particular doctrine has spread not only in europe but has also spread
to other jurisdictions as well, The main proponents of European Union has treated this doctrine with
utmost importance and relevance19.

European Commission And Its Significance

The European commission has played an inevitable role in taking to places where it has never been
taken before, The ill effects of second world war has thought an important lesson in the field of
human rights, So they wanted to establish a human rights convention which adopted the human
right convention as we know it today, This step was undertaken to achieve this goal was primarily
taken by European countries who were part of the allies worst affected by the atrocities of
Germany20. Hence to avoid the ill effects of second world war, If a war outbreaks again, The
European countries were quite determined to rewrite their history, As a result of this convention, A
European court of human rights was established to see whether human rights are violated among the
parties to the treaty(European Union)21. The convention was formally signed on November 4, 1950
and it came to operation on September 3, 1953, The court of the European Human rights
commission is situated in Strassbourg22. The 11th protocol of the convention consists of three
divisions, The first division consists of 2 to 18, The second division consists of 19 to 51 and its
guidelines on how it works is given in the third division 23. Before the amendment in the place of 11 th
protocol there was article 19. Many of the articles in section 1 are grouped in such a way, That its
directly relates to basic freedom24. Article 2 then deals with the right to life of a person, In the case
of Evans Vs. United Kingdom, the court dealt with the question whether falling of embryos is

17
Roberts, Adam. "The Applicability of Human Rights Law during Military Occupations." Review of
International Studies 13, no. 1 (1987): 39-48. http://www.jstor.org/stable/20097099.
18
McCorquodale, Robert. "Corporate Social Responsibility and International Human Rights
Law." Journal of Business Ethics 87 (2009): 385-400. http://www.jstor.org/stable/27749693.
19
González, Felipe, and Stanley Hoffmann. "European Union and Globalization." Foreign Policy, no.
115 (1999): 28-43. doi:10.2307/1149491.
20
"European Convention on Human Rights." The International and Comparative Law Quarterly 14,
no. 3 (1965): 1044. http://www.jstor.org/stable/757074.
21
Zander, Michael. International Affairs (Royal Institute of International Affairs 1944-) 52, no. 3 (1976):
469. doi:10.2307/2616573.
22
"European Convention on Human Rights." The International and Comparative Law Quarterly 23,
no. 1 (1974): 193-94. http://www.jstor.org/stable/757959.
23
Hopkins, C. A. "European Convention on Human Rights." The Cambridge Law Journal 24, no. 1
(1966): 4-7. http://www.jstor.org/stable/4505057.
24
"European Convention on Human Rights." The International and Comparative Law Quarterly 23,
no. 2 (1974): 471. http://www.jstor.org/stable/758450.
directly related to the right to life, The answer of the court was positive. To add to this this
conclusion was reached by the court by using the doctrine “The doctrine of marginal
appreciation”25. Article 2 plays as important responsibility on the authorities, The responsibilities
are as follows, Duty to protect citizens from unlawful killing, A duty to conduct probe into sudden
deaths without proper relevance. It is important to note that death penalty was not implemented in
European Union because of this principle and doctrine of Marginal appreciation is used to root out
conflict with local laws26.

Article 3
Article 3 prohibits torture in its jurisdiction or any odd labour punishments as this convention
advocates for modern prison system where convicts are reformed so no torturous methods can be
adapted in European jurisdictions27.

Fair Trial
European countries follow mot guilty until proven of the crime principle, This means that every
accust in the jurisdiction of European Human Rights convention has an inherent right to have a fair
trial as per the convention rules28. Article 6, which deals with fair trial were discussed in detail in
the case of Steel Vs United Kingdom29.

Article 7
Retro activity as per this principle no person can be retrospectively be held liable for his actions in
the past, This section can be criticized also sometimes30.

Conclusion
In the above topic I have tried to discuss the doctrine of marginal appreciation and its use and how
European convention on human rights has effectively utilized this principles to solve many
jurisdiction issues pertaining to conflict between national laws of different nations in Europe 31.
During the course of this research, The researcher came to the understanding that the doctrine of
25
Greene, Alan. Irish Jurist (1966-), New Series, 45 (2010): 249-50.
http://www.jstor.org/stable/44027122.
26
Mowbray, Alastair. Cases, materials, and commentary on the European Convention on Human Rights.
Oxford University Press, 2012.
27
Simpson, AW Brian. Human rights and the end of empire: Britain and the genesis of the European
Convention. Oxford University Press on Demand, 2004.
28
Evans, Carolyn. Freedom of religion under the European Convention on Human Rights. Vol. 2. Oxford:
Oxford University Press, 2001.
29
Mowbray, Alastair. "The Creativity of the European Court of Human Rights." Human Rights Law
Review 5, no. 1 (2005): 57-79.
30
Leach, Philip. Taking a case to the European Court of Human Rights. Oxford University Press, 2011.
marginal appreciation has made to evolve by the European court. Its main use was in relation to
martial law although now a day it has been used in different fields as well 32. The researcher has used
materials primarily from Jstor, Google scholar. The primary materials were collected from the
TNNLU library which helped me give a basic understanding of the doctrine of marginal
appreciation. Both primary and secondary sources were relied upon for this project.

31
Voeten, Erik. "The impartiality of international judges: Evidence from the European Court of Human
Rights." American Political Science Review 102, no. 4 (2008): 417-433.
32
Mattli, Walter, and Anne-Marie Slaughter. "Revisiting the European court of justice." International
organization 52, no. 1 (1998): 177-209.