The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights

Abstract

The margin of appreciation is a measure of discretion allowed to the Member States in the manner that they implement the standards of the European Convention on Human Rights, taking into account their national particular circumstances. Both the European Commission and Court of Human Rights are entrusted with the balancing between the Europe-wide ‘uniform’ approach on one hand and the need to defer to the national sovereignty and to various local values deriving from cultural, religious, and socioeconomic diversity on the other. By analysing the interplay between strictness of scrutiny and the width of the margin of appreciation in the case-law of Article 8, the author attempts to identify the underlying policy grounds for the margin of appreciation under Article 8. He argues that there are certain policies which affect the judicial self-restraint and those which uphold the active review in the jurisprudence of Article 8.