The Margin of Appreciation, Subsidiarity, and Global Challenges to Democracy

Abstract

Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and therefore any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should therefore be secondary, confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this paper is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.