As has been constantly stated by the literature, the term “margin of appreciation” cannot be found in the text of the European Convention of Human Rights.[1] But that might change in the future. States Parties have drafted and signed Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 15”).[2] The Protocol introduces a new paragraph at the end of the European Convention’s preamble, which states:
“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,”[3]
The United Kingdom’s government actively promoted the treaty, as part of its strategy to countervail decisions such as Othamn (Abu Qatada) v. United Kingdom.[4] States Parties first adopted the Brighton Declaration, in which they refused to incorporate a substantive provision on the MOA doctrine in the core text of the European Convention, but accepted the inclusion of the cited reference in the preamble.[5] Protocol No. 15 now seals that aspiration. So far, only Ireland has signed and ratified the treaty and still it needs the ratification of other 46 States Parties to the European Convention.
The text of the Protocol, in the part that is relevant to this research, amends the preamble of the European Convention. It introduces an explicit reference to the “principle of subsidiarity” (States “have the primary responsibility to secure rights . . . ”) and the “margin of appreciation” doctrine (States “enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights . . . ”). However, it does not reform the substantive provisions of the Convention, something that was celebrated by NGOs.[6] The reference to the MOA doctrine in article 1 of the Protocol contains an explicit reference to the supervisory role of the European Court. Therefore, national discretion is not unlimited. Both States Parties and NGOs have understood that article 1 of the Protocol does not change the current jurisprudential praxis of the Court.[7]
But the amendment is not “toothless.” Preambles and travaux préparatoires play a significant role in the interpretation of the treaties’ provisions. The European Court has accepted this principle of treaty interpretation. In the particular case of Protocol No. 15, the European Court pointed out that “both the explanation given and the context in which the text was drafted are themselves legally significant . . . .”[8] A relevant question will be to what extent the inclusion of these principles in the preamble would change the MOA doctrine as has been developed by the European Court. If the Court follows the understanding expressed in the Explanatory Report and the reading adopted by NGOs, then the amendment should not fix any new features to the MOA doctrine. It would only provide a normative basis that part of the literature has long criticized. It is yet to see how the Court would apply the new preamble in cases where it could defer to national authorities.
[1] Dean Spielmann, Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver of Subsidiarity of European Review? 14 Cambridge Yearbook of European Legal Studies 381, 383 (2011-2012).
[2] Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 15”), open for signature June 24, 2013.
[3] Id, at article 1, emphasis added.
[4] European Court of Human Rights, Othamn (Abu Qatada) v. United Kingdom, App. No. 8139/09, Jan. 17, 2012. See “Abu Qatada deportation blocked in human rights court”, The Guardian, Jan. 17, 2012, available at http://www.theguardian.com/world/2012/jan/17/abu-qatada-deportation-blocked-european [last visited Jan. 24, 2014]; “Human rights court blocks Abu Qatada deportation”, The Independent, Jan. 18, 2012, available at http://www.independent.co.uk/news/uk/politics/human-rights-court-blocks-abu-qatada-deportation-6291124.html [last visited Jan. 24, 2014].
[5] High Level Conference on the Future of the European Court of Human Rights. Brighton Declaration, Apr. 19, 2012, at ¶12.b.
[6] Amnesty International et al., Joint NGO Statement. Protocol 15 to the European Convention on Human Rights must not result in a weakening of human rights protection, June 24, 2013, at p. 2.
[7] Id., at 3: “These elements of the travaux préparatoires of Protocol 15 unequivocally confirm that the new Preamble to the Convention will have to be understood in connection with the Court’s long- standing practice in applying its doctrine of the margin of appreciation.” See also Council of Europe, Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. Explanatory Report, CETS No. 213, at ¶9, available at http://www.echr.coe.int/Documents/Protocol_15_explanatory_report_ENG.pdf [last visited Jan. 24, 2014]: “In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.”
[8] European Court of Human Rights, Opinion of the Court on Draft Protocol No. 15 to the European Convention on Human Rights, Feb. 5, 2013, at ¶4..
“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention,”[3]
The United Kingdom’s government actively promoted the treaty, as part of its strategy to countervail decisions such as Othamn (Abu Qatada) v. United Kingdom.[4] States Parties first adopted the Brighton Declaration, in which they refused to incorporate a substantive provision on the MOA doctrine in the core text of the European Convention, but accepted the inclusion of the cited reference in the preamble.[5] Protocol No. 15 now seals that aspiration. So far, only Ireland has signed and ratified the treaty and still it needs the ratification of other 46 States Parties to the European Convention.
The text of the Protocol, in the part that is relevant to this research, amends the preamble of the European Convention. It introduces an explicit reference to the “principle of subsidiarity” (States “have the primary responsibility to secure rights . . . ”) and the “margin of appreciation” doctrine (States “enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights . . . ”). However, it does not reform the substantive provisions of the Convention, something that was celebrated by NGOs.[6] The reference to the MOA doctrine in article 1 of the Protocol contains an explicit reference to the supervisory role of the European Court. Therefore, national discretion is not unlimited. Both States Parties and NGOs have understood that article 1 of the Protocol does not change the current jurisprudential praxis of the Court.[7]
But the amendment is not “toothless.” Preambles and travaux préparatoires play a significant role in the interpretation of the treaties’ provisions. The European Court has accepted this principle of treaty interpretation. In the particular case of Protocol No. 15, the European Court pointed out that “both the explanation given and the context in which the text was drafted are themselves legally significant . . . .”[8] A relevant question will be to what extent the inclusion of these principles in the preamble would change the MOA doctrine as has been developed by the European Court. If the Court follows the understanding expressed in the Explanatory Report and the reading adopted by NGOs, then the amendment should not fix any new features to the MOA doctrine. It would only provide a normative basis that part of the literature has long criticized. It is yet to see how the Court would apply the new preamble in cases where it could defer to national authorities.
[1] Dean Spielmann, Allowing the Right Margin: The European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver of Subsidiarity of European Review? 14 Cambridge Yearbook of European Legal Studies 381, 383 (2011-2012).
[2] Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms (“Protocol No. 15”), open for signature June 24, 2013.
[3] Id, at article 1, emphasis added.
[4] European Court of Human Rights, Othamn (Abu Qatada) v. United Kingdom, App. No. 8139/09, Jan. 17, 2012. See “Abu Qatada deportation blocked in human rights court”, The Guardian, Jan. 17, 2012, available at http://www.theguardian.com/world/2012/jan/17/abu-qatada-deportation-blocked-european [last visited Jan. 24, 2014]; “Human rights court blocks Abu Qatada deportation”, The Independent, Jan. 18, 2012, available at http://www.independent.co.uk/news/uk/politics/human-rights-court-blocks-abu-qatada-deportation-6291124.html [last visited Jan. 24, 2014].
[5] High Level Conference on the Future of the European Court of Human Rights. Brighton Declaration, Apr. 19, 2012, at ¶12.b.
[6] Amnesty International et al., Joint NGO Statement. Protocol 15 to the European Convention on Human Rights must not result in a weakening of human rights protection, June 24, 2013, at p. 2.
[7] Id., at 3: “These elements of the travaux préparatoires of Protocol 15 unequivocally confirm that the new Preamble to the Convention will have to be understood in connection with the Court’s long- standing practice in applying its doctrine of the margin of appreciation.” See also Council of Europe, Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms. Explanatory Report, CETS No. 213, at ¶9, available at http://www.echr.coe.int/Documents/Protocol_15_explanatory_report_ENG.pdf [last visited Jan. 24, 2014]: “In this respect, the role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.”
[8] European Court of Human Rights, Opinion of the Court on Draft Protocol No. 15 to the European Convention on Human Rights, Feb. 5, 2013, at ¶4..
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