Margin of appreciation

The margin of appreciation (or margin of state discretion) is a doctrine with a wide scope in international human rights law. It was developed by the European Court of Human Rights, to judge whether a state party to the European Convention on Human Rights should be sanctioned for derogations. The doctrine allows the Court to reconcile practical differences in implementing the articles of the Convention. Such differences create a limited right, for Contracting Parties, "to derogate from the obligations laid down in the Convention". The doctrine also reinforces the role of the European Convention, as a supervisory framework for human rights. In applying this discretion, European Court judges must take into account differences between domestic laws of the Contracting States as they relate to substance and procedure. The margin of appreciation doctrine contains concepts that are analogous to the principle of subsidiarity, which occurs in the unrelated field of European Union law. The purpose of the margin of appreciation is to balance individual rights with national interests, as well as resolve any potential conflicts. It has been suggested that the European Court should generally refer back to the State's decision, as they are an international court instead of a bill of rights.

The phrase margin of appreciation is a literal translation of the French "marge d'appréciation". The latter phrase refers to a notion of administrative law that was developed by the Conseil d'Etat, but equivalent concepts have also emerged in every other civil jurisdiction. At the level of the European Convention on Human Rights, a margin of appreciation refers to some "latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies". This is an intermediary norm in the jurisprudence of the European Court of Human Rights. It allows for some compromise between the aspirations of the Convention and the circumstances faced by a Contracting Party. This doctrine of administrative discretion first gained national levels of prominence, most notably under the German Bundesverwaltungsgericht (or Supreme Administrative Court), before it was translated into a doctrine of supervisory discretion for a regional context.

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