Governing from the Margins: The European Court of Human Rights’ Margin of Appreciation Doctrine as a Tool of Global Governance

Abstract

The European Court of Human Rights’ margin of appreciation doctrine is of growing importance in general international law. Existing scholarship, however, fails to consider the political stakes involved in its use. The aim of this paper is to offer a reconceptualisation of the margin as a tool of global governance in the context of the increasing judicialisation of human rights protection in Europe. It then proposes four sketches of its possible governance effects, situating it within broader debates concerning competing models of international constitutionalisation, the Court’s unarticulated discrimination between different European States, and the challenges the Court faces in maximising compliance with its judgments. The paper concludes by arguing that the Court’s use of the margin as an ‘escape valve’ to avoid potentially controversial proportionality assessments poses a challenge to its long-term legitimacy, and involves a kind of ‘bad faith’ exercise of its governance power.