The Margin of Appreciation and Freedom of Religion: Between Treaty Interpretation and Subsidiarity
Journal of Catholic Legal Studies, Vol. 52, 2013
19 Pages Posted: 29 Nov 2012 Last revised: 28 Oct 2013
Date Written: September 20, 2012
Abstract
The article is an inquiry into the legal basis of the margin of appreciation, based upon – but not limited to – the Lautsi (GC) case, where it played a key role.
After briefly sketching the place of the margin of appreciation concept in the system of the European Convention on Human Rights, the article argues that the international rules on treaty interpretation, and the principle of subsidiarity provide the concept with a solid legal basis. In the first respect, rules on treaty interpretation shed some light on the – widely criticized – European consensus criterion, under which the European Court constructs the 'ordinary meaning' of the words used in the Convention, when nor the text, nor the object and purpose, nor the context, offer precise leads.
In the second respect, the margin of appreciation is a corollary of the principle of subsidiarity and is therefore founded upon one of the structural principles of the ECHR, recognized as such by the European Court. As is increasingly recognized, given the concurring roles of national and international authorities in the protection of human rights, it is of crucial importance that their reciprocal rights and duties are clearly identified, with due regard to legitimacy considerations. The role of national democratic authorities, adequately subsidized by the international ones in the implementation of their international obligations, seems, in the present stage, to require to be enhanced and not erased.
The relevance of both standards can hardly be questioned: rules on treaty interpretation are at the root of the task of the European Court when it is called upon to ensure 'the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto', and subsidiarity is one of the basic features of the European Convention.
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