Democracy and the European Court of Human Rights: The Margin of Appreciation Doctrine Revisited

One of the most influential international treaties on human rights on regional level is the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed on 4 November 1950 (ECHR). However, the European Court of Human Rights (Court) sometimes delivers judgments that not only influence the cases at hand but influence generally the national legal orders and practices of the member states. In view of this development, some member states consider the Court's adjudication as "lawmaking", limiting their sovereignty rights and national democratic processes. Moreover, critical voices in Switzerland but also in other member states raise the issue of a democratic deficit of the Court.

In the Brighton Declaration of 20 April 2012, the member states voiced this criticism and agreed that a reference to the "doctrine of the margin of appreciation" should be included in the preamble to the ECHR. The doctrine refers to the room for manoeuvre that the Court accords national authorities in fulfilling their obligations under the Convention. Accordingly, Protocol No. 15 of 26 June 2013 amends the preamble with a new recital according to which the treaty parties enjoy a margin of appreciation in securing the rights and freedoms defined in the ECHR. Thus, Protocol No. 15 gives the doctrine of the margin of appreciation a newly formal prominence in the ECHR. This raises the following questions: (1) What significance does the doctrine have, (2) is it an instrument to reduce the democratic deficit of the Court, and (3) in which cases and under which conditions the doctrine should be applied in order to diminish the democratic deficit of the Court?

The project develops (1) a coherent general concept of the doctrine of the margin of appreciation by expounding its significance as a legal concept. Building on legal as well as political theories, the project argues that (2) the margin of appreciation is justified by the democracy concept rooted in the ECHR and is in principle capable of reducing the democratic deficit of the Court. It further (3) develops criteria in order to reconceptualize the doctrine to diminish the democratic deficit of the Court. The project results thus will contribute to the democratic legitimation of the Court, thereby enhancing its acceptance and improving its future work. In addition, the project contributes to a broader current discussion in Switzerland and other member states claiming that the Court limits their sovereignty and democratic processes.