Abstract
Questions have been raised over the compatibility of national restrictions imposed due to the COVID-19 pandemic with Contracting States’ obligations under the European Convention on Human Rights (‘ECHR’). Yet, the public emergency caused by the pandemic also means that the ECHR is likely to afford states a margin of appreciation when deciding on the legality of these restrictions. To determine whether this margin of appreciation should, in theoretical terms, be broadened, this piece will first examine the traditional doctrine of the margin of appreciation and its ‘structural’ conception. This article argues that while such a structural conception remains relevant for Article 15 derogations, it has to be re-conceptualised and further complemented with a substantive conception in the context of qualified rights. On this premise, the article contends that the margin of appreciation of states should be broadened in relation to qualified rights, but not for Article 15 derogations.
1. Introduction
The COVID-19 pandemic has led to the implementation of numerous safety measures by Contracting States to the ECHR. Undoubtedly, such measures that prohibit public gatherings and trace individuals’ whereabouts, threaten to interfere with human rights under the ECHR.1 Nevertheless, in the context of a health emergency, it is also likely that the European Court of Human Rights (‘ECtHR’) will afford states some margin of appreciation when determining whether these restrictions are in breach of ECHR provisions. As of now, the amount of influence that the COVID-19 pandemic has had on states’ margin of appreciation has not been discussed by the ECtHR. This article thus seeks to provide some insight into whether the COVID-19 pandemic necessitates the broadening of states’ margin of appreciation. First, the traditional doctrine of the margin of appreciation and its structural conception will be examined. It will then be argued that, in relation to qualified rights (Art. 8-11 ECHR), the urgency to combat the COVID-19 pandemic requires the ECtHR to broaden the margin of appreciation of states, based on a rethinking of the structural conception coupled with the introduction of a substantive one. However, with respect to Art. 15 ECHR derogations, the already extensive margin of appreciation of states should remain the same.
2. The traditional doctrine of the margin of appreciation
Thus far, the ECtHR has only deliberated one case, Le Mailloux v France, involving a complaint against a state’s handling of the COVID-19 crisis.2 The applicant, Mr Mailloux, asserted that France’s health measures, including the restrictions on access to diagnostic tests, interfered with his rights under Art. 2, 3, 8, and 10 of the ECHR. In essence, the State had failed to uphold its positive obligations to protect individuals from the virus. Yet, the decision is of limited significance since the application was inadmissible, as Mailloux could not be regarded as a victim who was directly affected by the alleged violations as required by Art. 34 of the ECHR. Indeed, the assertions made by Mailloux were in abstracto. Nevertheless, the issue of admissibility should not generally arise in relation to COVID-19 restrictions, as long as individuals can show that they were directly affected by the states’ measures.
Given the lack of jurisprudence involving health emergencies, it is difficult to ascertain how broad the margin of appreciation of states will be in light of COVID-19. As a result, it is important to explore the traditional conceptions and justifications for the margin of appreciation doctrine, and whether these apply to the present scenario. This will help us understand, in theoretical terms, how COVID-19 may impact the margin of appreciation of states. In particular, this article will focus on the margin of appreciation granted to states when the ECtHR examines possible breaches of qualified rights,and whether a valid derogation has been made under Art. 15. This is because most of the jurisprudence on the margin of appreciation concerns qualified rights (Art. 8-11) and Art. 15.3 Moreover, the safety measures imposed by states are potential interferences with qualified rights.4 For example, a blanket ban on public gatherings may not be compliant with the right to freedom of assembly under Art. 11. Finally, a discussion of Art. 15 is relevant as several states have already exercised derogations from their ECHR obligations.5
2.1 Qualified rights
Qualified rights refer to personal-sphere rights (e.g. the right to freedom of expression) under Art. 8-11 ECHR. These rights may be restricted to protect the public interest in certain conditions.6 The state must prove that the interference was necessary in a democratic society, in accordance with the law, and proportionate to a pressing social need.7
The doctrine of the margin of appreciation has often been employed by the ECtHR when interpreting whether national restrictions based on public morals infringe on qualified rights.8 The ECtHR, in such cases, will not fully scrutinise the decision made by state authorities as to whether the restriction was necessary and proportionate. This has been termed by Letsas as a structural concept of the margin of appreciation.9 The state is thus allowed a degree of latitude in resolving the conflict between individual rights and public moral convictions, as long as a minimum standard is achieved.10
This conception of the margin of appreciation is premised on the idea that the ECtHR should defer to domestic authorities’ judgement whenever they are ‘better placed’ to assess local values.11 As argued by Legg, deference involves respecting the state’s primary role in the interests of comity of nations, and the recognition that the ECtHR is a ‘subsidiary to the national systems safeguarding rights’.12 Crucially, the ECtHR will decide that deference is required and that the state is better placed to make a judgment in the absence of a European-wide consensus on how an interference with individual rights should be resolved.13 Since a uniform standard cannot be identified, the ECtHR is hesitant to ‘impose on a minority of states a particular understanding of rights’.14 The rationale for such deference is a twofold functional justification. First, it ensures the efficient distribution of competences. Secondly, the language of subsidiarity legitimises the ECHR, as states are more likely to respect the ECtHR’s judgements if they are sensitive to the need for deference in the absence of a prevailing opinion within Europe.15
Indeed, a long line of precedent, starting from the classic Handyside decision, has confirmed that where there is a lack of a European consensus, the margin of appreciation will be wide.16 In Handyside, a publisher asserted that his freedom of expression under Art. 10 had been breached when the UK authorities seized copies of a book containing discussions of sexually explicit material. Noting that it was not possible to find a uniform European conception of morals, the ECtHR concluded that State authorities were in a better position to judge whether the restriction was necessary.17 The UK was thus left with a broad margin of appreciation.
More recently, in Mennesson v France, the ECtHR observed that there was no consensus in Europe regarding the ‘legal recognition of the relationship between intended parents and children conceived abroad’, which reflected the sensitive nature of surrogacy arrangements. Accordingly, the ECtHR held that France must be afforded a wide margin of appreciation in deciding whether a restriction relating to such arrangements in breach of an individual’s right of respect for family life under Art. 8 was ‘necessary in a democratic society’.18
In relation to qualified rights, it is therefore clear that the ECtHR’s structural conception of the margin of appreciation examines whether there is a European-wide consensus on the appropriateness of certain State actions. Assuming that such a conception continues to be adopted when determining whether COVID-19 national restrictions violate qualified rights, the ECtHR will seek to determine whether there is a uniform approach to tackling the pandemic. In the absence of any evidence demonstrating this, national authorities will likely be deemed to be in a better position to decide on what a necessary interference is with their obligations under the ECHR.
2.2 Art. 15 derogations
Beyond the issue of qualified rights, states may take measures which derogate from their obligations under the ECHR pursuant to Art. 15. Notably, Art. 15(1) provides that a derogation is possible only ‘in time of […] public emergency threatening the life of the nation’ and to the extent that the measure was ‘strictly required by the exigencies of the situation’. However, it is accepted that these conditions are subject to a generous structural conception of the margin of appreciation.19 This margin of appreciation affords greater leeway to states in determining the scope of derogation under Art. 15. In Ireland v UK, the ECtHR held that it falls to each state to determine whether an emergency exists, and, if so, how far it is necessary to overcome it.20 Moreover, the limited powers of review of the ECtHR were reaffirmed in A and Others v UK, where significant weight was given to the domestic court’s findings that the imminent threat of terrorist attacks constituted an emergency.21
From this, it is clear that the ECtHR, similar to how it interprets qualified rights, does not fully review whether an Art. 15 derogation is justified.22 Instead, national authorities are deferred to, and given leeway in deciding if a derogation is legal.23 Nonetheless, this does not mean that states enjoy unlimited powers. For instance, the declaration of an emergency cannot serve as a pretext for limiting political freedoms.24
Although the ECtHR adopts the same structural conception of margin of appreciation in relation to both qualified rights and Art. 15 derogations, their justifications for deference differ. In the context of Art. 15, while the ECtHR frequently finds that national authorities are better placed to make decisions, it is not based on an absence of consensus. Rather, the ECtHR has explained in Ireland v UK that because national authorities are in ‘direct and continuous contact with the pressing need of the moment’ caused by an emergency, they are better positioned than an international judge to examine whether a valid derogation has been made.25 This alludes to the special character of emergencies, where national democracy itself is at a risk of disintegration. In such a situation, the choice between maintaining order and protecting human rights is complex, and national authorities are deemed better equipped to make the appropriate choice.26 Moreover, such choices are fundamentally political, and therefore the interest that the public has in an effective government legitimises a broad margin of appreciation.27
If the ECtHR was to apply this line of argumentation to decide whether a state’s derogation from its obligations under the ECHR in light of the COVID-19 pandemic is valid, states would be granted a wide margin of appreciation. Indeed, the pressing nature of a public health disaster appears to fit into the special character of emergencies.
3. Reconceptualising and broadening of the margin of appreciation in relation to qualified rights due to COVID-19
With regards to potential breaches of qualified rights in the context of COVID-19, it remains to be seen whether the ECtHR will utilise the same line of European consensus-based reasoning to justify that states should be conferred a broadened margin of appreciation. Dzehtsiarou suggests that the ECtHR is unlikely to find any ‘meaningful consensus’ in states’ response to COVID-19.28 It is contended that the nature of measures varies across countries, and consensus can only be identified on a ‘high level of abstraction,’ namely that some form of measures were introduced.29 Hence, in the absence of commonly accepted practices, the ECtHR may be tempted to find that national authorities are better placed to make decisions, and exercise deference. If so, COVID-19 has broadened states’ margin of appreciation.
However, this article finds that this argument is an artificial way to broaden states’ margin of appreciation. Unlike morally sensitive issues, such as the legality of surrogacy, where no common answer can be ascertained, there is a general agreement among states that COVID-19 restrictions must be implemented. Furthermore, significant common ground can be gleaned from the states’ responses. Most European countries have imposed national lockdowns which restrict internal movement and prohibit public gatherings.30 Apart from two states, all EU Member States have introduced, or are developing a mobile contact tracing application.31 Contrary to Dzehtsiarou’s argument, it is therefore difficult for the ECtHR to conclude there is no consensus. Accordingly, a broadened margin of appreciation should not be granted on this basis.
The apparent disagreement over whether a European-wide consensus exists reveals a fundamental flaw of the consensus-based, structural conception of the margin of appreciation – it is fundamentally difficult to establish whether there is a consensus.32 First, the amount of convergence required to establish a consensus is unclear. On occasion, the ECtHR speaks of the need for ‘clear evidence of a continuing international trend’ to show a common ground and narrow the margin of appreciation.33 Conversely, it has also been suggested by the same Court, that a trend is insufficient to prove consensus and the practice must be universal.34 Secondly, even if a clear threshold is determined, comparative data can be interpreted differently to mean different things.35 For example, whether states’ responses to COVID-19 are alike leaves room for interpretation. How similar must the restrictions be? And how many countries are necessary to deduce the existence of a trend?
In light of this critique, and the view that there is common ground among states as to their responses to COVID-19, this article argues that the ECtHR should avoid relying on the consensus-based model. Rather, the ECtHR should adopt an alternative structural conception of the margin of appreciation that is not dependent on the absence of consensus. In addition, it is proposed that the alternative structural conception should be coupled with the introduction of a substantive conception, which is premised on different reasons.
3.1 Alternative ‘structural’ conception
The alternative structural conception proposed by this article justifies that national authorities are better placed to assess whether a restriction is permissible based on superior expertise.36 In sum, supranational courts often do not have the same direct knowledge of a particular society compared to national legislative or administrative bodies. Particularly in the field of healthcare, where complex socio-political assessments are required, the ECtHR is not equipped to make operational choices between individual freedoms and the public interest.37 This was illustrated in Shelley v UK, where the ECtHR stated that matters of healthcare policy, particularly regarding preventive measures, are within the margin of appreciation of national authorities who are ‘best placed to assess priorities, use of resources and social needs’.38
3.2 New ‘substantive’ conception
The substantive conception proposed in this article draws inspiration from Letsas and Arnardóttir.39 Similar to Letsas’ structural conception, a substantive conception of the margin of appreciation refers to the situation where the ECtHR refrains from fully scrutinising the findings of national authorities, and decides that there is no violation of a state’s ECHR obligations. This is reflective of the principle of subsidiarity according to which states have the primary responsibility of securing the rights under the ECHR.40 However, the difference between the two conceptions lies in their justifications. While the structural conception relates to deference to other decision-making bodies as they are better placed to deal with the situation at hand, the substantive conception is motivated by the ECtHR’s ‘own assessment of merits reasons’.41
According to Arnardóttir, a distinction must be made between ‘systemic non-merits reasons’ and ‘normative merits reasons’.42 Deference to national authorities under the structural conception focuses on the capacity of the national authorities (in other words, they are better placed to make judgments). These are ‘non-merits reasons’ as they are systemic concerns that do not consider the substance of the issue.43 Conversely, the substantive conception draws on the ‘relevant substantive characteristics of the issue under consideration, such as the type of right at stake, or the type of interests protected by it’.44 The ECtHR is therefore deciding on the scope of the margin based on its normative reasoning.
For instance, in Dickson v UK, when determining if the UK’s refusal to grant a prisoner access to artificial insemination facilities was compliant with the right to family life (Art. 8), the ECtHR acknowledged that several factors contribute to the breadth of the margin of appreciation.45 In particular, this included the ‘nature of activities restricted and the aims pursued by the restrictions’.46 The ECtHR thus proceeded to engage with normative merits-based reasons, highlighting that the choice to become a genetic parent formed an important facet of one’s identity.47 In this context, the margin granted to the UK was limited.
In contrast to the structural conception, where deference is explained through a twofold functional justification, the substantive conception’s reason for making its own assessment is normative. When the ECtHR makes a merits-based judgment that the margin of appreciation should be narrowed or widened, it ‘facilitates pluralism and diversity associated with democratic society’ and highlights an awareness that there are multiple, equally legitimate ways to protect Convention rights.48
4. COVID-19 widening the margin of appreciation for qualified rights through an application of the alternative structural and substantive conceptions
From Section 3, it is clear that the consensus-based model is inadequate to justify the COVID-19 pandemic broadening states’ margin of appreciation vis-à-vis qualified rights. Instead, the alternative structural conception and the new substantive conception are preferred, as they avoid having to identify a consensus and have both functional and normative justifications. Such a reconceptualization encourages a rethinking of the doctrine and ensures that the ECtHR does not attempt to fit a square peg into a round hole.
Through this reconceptualization, COVID-19 would broaden states’ margin of appreciation in relation to qualified rights. Following precedents, the ECtHR would first outline the factors that determine the scope of the margin of appreciation.49 It would then engage with both structural and substantive conceptions, as was the case in Dogru v France.50 Dogru was concerned with whether a restriction imposed on the applicant’s right to wear the Islamic headscarf in school amounted to a violation of Art. 9 (right to freedom of thought, conscience and religion). Ultimately, the restriction was ‘necessary in a democratic society’, and within France’s wide margin of appreciation. This is because the national authorities were ‘best placed’ to evaluate local needs given their expertise arising from being in direct contact with the education community.51 Moreover, the ECtHR cited substantive reasons, such as the ‘delicate relations between Church and State’ and that the wearing of the headscarf could be a ‘source of pressure and exclusion’.52
Regarding COVID-19, the ECtHR should appreciate that there is a consensus among states on their responses to the pandemic. Nevertheless, unlike the consensus-based structural approach, the existence of a consensus would not limit states’ margin of appreciation. As was done in Shelley,53 which concerned the UK government’s refusal to provide needle exchange programmes for drug users in prison, the ECtHR could hold that domestic health authorities are best placed to evaluate the most appropriate restrictions to stop the spread of the virus, taking into account the state’s resources, the current infection rate, and the interference with individual freedoms. Furthermore, the ECtHR may engage with normative merits reasons. For instance, in the event of a potential breach of the right to peaceful assembly, (Art. 11 ECHR) due to a prohibition of public gatherings, the damaging consequences of a demonstration on the virus transmission rate could serve to widen the margin of appreciation. In essence, it is argued that the cumulation of both structural and substantive factors should lead to a broadened margin of appreciation for states when responding to the pandemic. In contrast, under a consensus-based, structural approach, the margin of appreciation would be much narrower.
5. Margin of appreciation remains the same in the context of an Art. 15 derogation
Unlike qualified rights, a reframing of the margin of appreciation doctrine is not necessary to interpret the validity of Art. 15 derogations made in light of COVID-19. As explained above, the existing margin of appreciation conferred onto national authorities to derogate from its ECHR obligations is wide. While there are no cases on health-specific emergencies relating to Art. 15, the ECtHR is likely to rely on precedent, and extend this broad margin of appreciation to the COVID-19 situation.54 This is because the same structural conception of the doctrine can be applied to the pandemic scenario. Indeed, as argued by Jovičić, the pandemic and its restrictions have affected ‘the very functioning of societies and threatened the life of whole nations’.55 As was the case in Ireland v UK, which centred around one of the ‘longest and most violent terrorist campaigned in either part of the island of Ireland’, the domestic authorities are in ‘direct and continuous contact with the pressing needs of the moment’.56 There is thus a compelling reason to declare that states are best placed to determine whether an emergency exists and if the measures were strictly required. As such, COVID-19 has not broadened states’ margin of appreciation any further in the context of Art. 15 derogations, as states will be granted the same wide margin as before. In coming to this conclusion, this article does not comment on whether making an Art. 15 derogation can influence the scope of the margin of appreciation given to states when interpreting other rights.57 The analysis pertains solely to the COVID-19 pandemic and its effect on the margin of appreciation for qualified rights and Art. 15 derogations.
6. Conclusion
The doctrine of the margin of appreciation has predominantly been conceptualised as structural. This has allowed the ECtHR to accord a wide degree of latitude to states when interpreting possible breaches of qualified rights and whether an Art. 15 derogation is legal. Yet, in light of unprecedented times due to the COVID-19 pandemic, a rethinking of the doctrine is necessary regarding qualified rights. It is contended that based on an alternative structural conception together with a new substantive conception, COVID-19 should broaden states’ margin of appreciation for qualified rights. The same cannot be said for Art. 15 derogations, where states will be granted the same margin of appreciation.
[1] Kanstantsin Dzehtsiarou, ‘COVID-19 and the European Convention on Human Rights’ (Strasbourg Observers, 27 March 2020) <https://strasbourgobservers.com/2020/03/27/covid-19-and-the-european-convention-on-human-rights/> accessed 16 July 2021.
[2] Le Mailloux v France App no 18108/20 (ECtHR, 5 November 2020).
[3] Steven Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights (Human rights files No 17. Council of Europe Publishing 2000).
[4] Dzehtsiarou (n 1).
[5] Sanja Jovičić, ‘COVID-19 restrictions on human rights in the light of the case-law of the European Court of Human Rights’ (2021) 21 ERA Forum 545, 547.
[6] Council of Europe, ‘Definitions’ <https://www.coe.int/en/web/echr-toolkit/definitions> accessed 27 April 2021.
[7] Greer (n 3) 9.
[8] George Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705, 723.
[9] ibid.
[10] Eyal Benvenisti, ‘Margin of Appreciation, Consensus, and Universal Standards’ (1999) 31 New York University Journal of International Law & Politics 843.
[11] Letsas (n 8) 721.
[12] Andrew Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (OUP 2012) 24.
[13] Benvenisti (n 10) 851.
[14] Frédéric Mégret, ‘Nature of Obligations’ in David Moeckli and others (eds), International Human Rights Law (3rdedn, OUP 2017) 21.
[15] Oddný Mjöll Arnardóttir, ‘Rethinking the Two Margins of Appreciation’ (2016) 12 European Constitutional Law Review 27, 40.
[16] Handyside v The United Kingdom App No 5493/72 (ECtHR, 7 December 1976) para 48; Janneke Gerards, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2010) 17 European Law Journal 80, 108.
[17] Handyside (n 16) para 48
[18] Mennesson v France App No 65192/11 (ECtHR, 26 June 2014) para 78.
[19] Letsas (n 8) 723.
[20] Ireland v United Kingdom App No 5310/71 (ECtHR, 18 January 1978) para 207.
[21] A and Others v UK [GC] App No 3455/05 (ECtHR, 19 February 2009) para 174.
[22] Letsas (n 8) 723.
[23] Greer (n 3) 5.
[24] Mehmet Hasan Altan v Turkey App No 13237/17 (ECtHR, 20 March 2018) para 210.
[25] Ireland v UK (n 20) para 207.
[26] Greer (n 3) 24.
[27] Lawless v Ireland (No. 3) 332/57 (ECtHR, 1 July 1961) (per Sir Humphrey Waldock in oral submissions).
[28] Kanstantsin Dzehtsiarou, ‘Article 15 derogations: are they really necessary during the COVID-19 pandemic?’ [2020] European Human Rights Law Review 359, 363.
[29] ibid.
[30] Cornelius Hirsch, ‘Europe’s coronavirus lockdown measures compared’ <https://www.politico.eu/article/europes-coronavirus-lockdown-measures-compared/> (Politico, 31 March 2020) accessed 16 July 2021.
[31] European Commission, ‘Mobile contact tracing apps in EU Member States’ <https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/travel-during-coronavirus-pandemic/mobile-contact-tracing-apps-eu-member-states_en> accessed 21 July 2021.
[32] Gerards (n 16) 109.
[33] Christine Goodwin v The United Kingdom App No 28957/95 (ECtHR, 11 July 2002) para 85.
[34] McElhinney v Ireland [GC] App No 31253/96 (ECtHR, 21 November 2001) para 38.
[35] Gerards (n 16) 109.
[36] Legg (n 12) 25.
[37] Gerards (n 16) 110.
[38] Shelley v United Kingdom App No 23800/06 (ECtHR, 4 January 2008).
[39] Arnardóttir (n 15).
[40] Article 1 ECHR.
[41] Arnardóttir (n 15) 53.
[42] ibid 42.
[43] ibid 43.
[44] ibid.
[45] Dickson v The United Kingdom [GC] App No 44362/04 (ECtHR, 4 December 2007) para 77.
[46] ibid.
[47] ibid para 78.
[48] Arnardóttir (n 15) 40.
[49] S and Marper v The United Kingdom [GC] App Nos 30562/04 and 30566/04 (ECtHR, 4 December 2008) para 102.
[50] Dogru v France App No 27058/05 (ECtHR, 4 December 2008).
[51] ibid para 75.
[52] ibid paras 71 – 72.
[53] Shelley (n 38).
[54] Jovičić (n 5) 550.
[55] ibid.
[56] Ireland (n 20) para 11.
[57] See Dzehtsiarou, ‘Article 15 derogations: are they really necessary during the COVID-19 pandemic’ (n 28); Alan Greene, ‘Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If not Now, When?’ (2020) European Human Rights Law Review 262; Alan Greene, ‘On the value of Derogations from the ECHR in Response to the COVID-19 Pandemic: A Rejoinder’ (2020) European Human Rights Law Review 526; Tom Hickman, ‘The Coronavirus Pandemic and Derogation from the European Convention on Human Rights’ (2020) European Human Rights Law Review 593.
Sze Hian Ng
LLB (LSE) ’21