|
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".〔''Application No. 176/56'' (Greece v United Kingdom, "Cyprus"), 2 Yearbook of the European Convention 1958-1959, 174-199 at 176.〕 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 Sunday Times ''v United Kingdom'', no. 6538/74, § 61, ECHR 1979 A30. )〕 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. ==Definition and origins== 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".〔H.C. Yourow, ''The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence'' (Martinus Nijhoff, Dordrecht, 1996) at 13.〕 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. The concept of a margin of appreciation at the European level emerged through questions surrounding martial law. It was introduced to European Convention jurisprudence in 1956. This occurred through an opinion of the European Commission of Human Rightsin a ''Cyprus'' caseto permit the United Kingdom, under Article 15, to derogate from its obligations in a time of public emergency.〔P. van Dijk, et al. (ed.s) ''Theory and Practice of the European Convention on Human Rights (Fourth Edition)'' (Intersentia, Antwerpen, 2006) at 1055-1056.〕 Subsequently, the hearing for ''Lawless v Ireland'' (that is, the first formally decided case of the Court) included an oral argument from the Commission President Sir Humphrey Waldock that:〔(''Lawless v Ireland'', no. 332/57, ECHR 1961 A3 ) (N.B. verbatim record of the hearing on 8 April). Cited in J. Christoffersen, ''Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights'' (Koninklijke Brill NV, Leiden, 2009) at 244.〕 Later, the "Belgian Linguistic Case (No. 2)" of 1968 introduced a margin of appreciation to circumstances that fell outside emergency situations that were identified by Article 15 of the European Convention. This case proved to be critical in establishing a wide scope for the emerging doctrine of discretion. It identified two key elements for establishing a margin of appreciation: a focused consensus standard among 'Convention signatory states', as well as a proportionality principle in the jurisprudence of the European Convention.〔Yourow (1996), above n 6, at 30-31.〕 The latter element consisted of two weighting factors, which are necessary to establish the extent of a particular margin. These factors are the 'nature of the right' in question, as well as 'the aim pursued by the contested measure'.〔P. Alston and R. Goodman, ''International Human Rights: Text and Materials (the Successor to International Human Rights in Context)'' (Oxford University Press, Oxford, 2013) at 946.〕 With an expansive doctrine in view, the European Court also sought to constrain itself by stating that:〔(''Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium'' ("Belgian Linguistic Case") (No. 2), no. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64, §10, ECHR 1968 A6. )〕 The margin of appreciation doctrine received considerable development in 1976, with the Court decision of ''Handyside v United Kingdom''. This concerned the publication of a Danish textbook for primary school children, in which sexual behaviour was discussed using explicit terms. It was successfully published in several signatory states, but was met with controversy in the United Kingdom. Handyside, an English publisher, was convicted for violating domestic laws on obscene publications. The case that was brought before the European Court challenged whether the United Kingdom could infringe freedom of expression, under Article 10, on the ground of protecting moral norms. The fact that the "Little Red Schoolbook" had been received in other European countries formed a basis for this challenge. However, the Court permitted the imposed limitation on freedom of expression and found no violation of the Convention. It held that:〔(''Handyside v United Kingdom'', no. 5493/72, §48, ECHR 1976 A24. )〕 With this judgment, the European Court reinforced its distinction between the supervisory jurisdiction of the Convention framework and domestic forms of discretion. However, it also affirmed that:〔(''Ibid.'', §49. )〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Margin of appreciation」の詳細全文を読む スポンサード リンク
|