When Human Rights Clash in ‘the Age of Subsidiarity’ : What Role for the Margin of Appreciation?

Abstract

The core argument of this chapter is that the margin of appreciation has an important, substantive role to play in the resolution of human rights clashes. Throughout the chapter, I identify a number of democracy-enhancing reasons that advocate in favour of granting States a margin of appreciation in tackling human rights clashes. I submit, in particular, that States are in principle better placed to provide a first attempt at resolving human rights clashes and should be granted some leeway in arriving at that resolution. I oppose, however, the automatic granting of a margin of appreciation in relation to human rights clashes, which appears to be the ECtHR’s principled approach at present. I argue that democracy-enhancing reasons of a different kind – among others the counter-majoritarian function of human rights – advocate against the adoption of an overly deferential position towards the State. I conclude that both sets of democracy-enhancing reasons can be joined in support of a 'default' position under which States are granted a certain margin of appreciation in resolving human rights clashes, as opposed to a wide one. I finally indicate that in each specific human rights clash, some fine-tuning remains in order to move from the ‘default’ position to the determination of the final breadth of the margin of appreciation, in the particular circumstances.