BLOG: The margin of appreciation is vital to the European human rights system. But is it also an avenue for actors that seek to influence the court in ways that seek to undermine human rights?
Blogpost by: Asgeir Falch-Eriksen, Head of the academic unit on Globalisation and Social Sustainability – Oslo Metropolitan University and Associate Professor II at the Centre for Research on Discretion and Paternalism
After the horrors of World War II, European nation-states recognized the urgent need to protect individual rights and prevent future atrocities. The idea was that certain restrictions should be set to bind future generations through upholding certain basic legal norms. This led to the development of the European Convention on Human Rights (ECHR) and the following establishment of the European Court of Human Rights (ECtHR). One key feature of this system is the margin of appreciation (MoA), a legal doctrine allowing countries discretion in how they implement human rights norms, acknowledging that societal values and maturity of liberal constitutional legal traditions vary across Europe.
The MoA is designed to balance national sovereignty with the enforcement of universal human rights. It operates under the principle of subsidiarity, meaning that the least centralized competent authority should make decisions. While the ECtHR oversees human rights protection in a supervisory capacity, individual countries are primarily responsible for implementing, securing, and enforcing these rights within their own legal frameworks.
However, this flexibility can be a double-edged sword. It also opens the door for variations in how rights are interpreted and enforced from one country to another. What becomes concerning is how certain entities can exploit this discretionary space through amicus curiae briefs—submissions of briefs to the court by third parties claiming to offer relevant information or expertise to the case at hand.
Ideally, amicus briefs help the court by providing additional perspectives and enriching the deliberation process. But not all “friends of the court” have noble intentions. Some organizations, which can be dubbed “bad amicus,” aim to influence the court in ways that undermine human rights standards.
But not all “friends of the court” have noble intentions. Some organizations, which can be dubbed “bad amicus,” aim to influence the court in ways that undermine human rights standards.
ASGEIR FALCH-ERIKSEN
The Rise of Bad Amicus
A notable example is the involvement of the Alliance Defending Freedom (ADF), a U.S.-based conservative Christian organisation. The ADF has been active in the United States, advocating against LGBTQ+ rights and women’s reproductive rights. They have extended their influence to Europe by submitting amicus briefs to the ECtHR through their European branch, such as in the case of “Strand Lobben and Others v. Norway.” In this case, the ADF argued for higher thresholds for state intervention in child protection cases and emphasised the importance of biological family bonds—positions that could weaken protections for vulnerable children.
The presence of such “bad amicus” poses a significant challenge: How can the court maintain its commitment to human rights while allowing for the necessary discretion afforded by the MoA? This question becomes even more complex when considering different legal theories that alter how you interpret the role of the MoA differently.
How can the court maintain its commitment to human rights while allowing for the necessary discretion afforded by the MoA?
ASGEIR FALCH-ERIKSEN
To put an edge to it, law is a profession, and ideally, to conduct a coherent professional practice, a professional subscribes to a certain theory. For instance, depending on what theory a judge subscribes to, let’s say theory A, she will be left with certain answers that are different to what her colleague, who subscribes to theory B, would have.
Three legal theories and the MoA
1. Legal Positivism
Legal positivism separates law from morality, focusing strictly on written laws as issued by sovereign authorities. Under this theory, the MoA allows states to interpret human rights norms only according to their own legal system. While this respects national sovereignty, it can lead to significant variations in rights enforcement from one country to the next, effectively undermining the transnational character of a human rights standard. It may also open the door for bad amicus to influence legal interpretations country by country and in ways that undermine human rights, as the focus is on enforceable legal commands rather than moral considerations.
2. Legal Pragmatism
Pragmatism views law as a tool to achieve social ends, emphasising the practical effects of legal decisions. It acknowledges that laws are often indeterminate and incorporate extra-legal factors like societal norms and scientific knowledge. While this approach allows for flexibility and adaptation to local contexts, it can be susceptible to manipulation. Bad amicus might appeal to societal goals or prevailing sentiments to sway court interpretations and decisions in their favour, even if those interpretations and decisions undermine universal human rights.
3. Discourse Theory
Rooted in rational discourse and universal principles, discourse theory emphasises that laws and legal interpretations should result from open, reasoned deliberation seeking mutual agreement. It underscores the prominence of rights and the intrinsic connection between democracy and the rule of law. This approach to the MoA focuses on upholding universal human rights standards due to its claim on democratic legitimacy. It is better equipped to resist the influence of bad amicus by requiring that all arguments withstand rigorous, transparent scrutiny.
Coping with bad amicus
In practice, how the ECtHR handles amicus briefs and interprets the MoA can significantly impact the protection of human rights in Europe.
- Under legal positivism, the court might focus narrowly on the letter of the law, potentially ignoring the broader moral implications that human rights are set to instil in social orders. This could allow bad amicus to exploit legal systems by pushing for interpretations that align with their agendas as long as they can be legally justified.
- With legal pragmatism, the court considers the practical outcomes and societal impacts of its decisions. While this can be beneficial, it also allows bad amicus to frame their arguments around societal goals or fears, manipulating the court to achieve ends that may conflict with human rights principles. Pragmatism might also shed light on bad amicus by allowing them a place within the process of argumentation, but whether or not they allow bad amicus influence is rather by chance.
- Through discourse theory, the court emphasises rational, inclusive deliberation. Arguments presented by amicus curiae are rigorously tested against especially the rights norms that are constitutive of the court itself, i.e. universal human rights standards. Bad amicus are less likely to succeed because their positions must be justified in a way that is acceptable to all affected parties, aligning with principles of human dignity and equality.
The path forward
The challenge posed by Bad Amicus highlights the importance of and the need for the legal frameworks and theories that guide the ECtHR’s interpretation of the MoA to be self-aware and to communicate the implications for decisions, provided different theoretical leanings. To safeguard human rights effectively, the court must be vigilant against undue influences and adopt an approach that prioritises universal rights and rational discourse to succeed as a human rights court. This implies that certain theories become more suited than others for a human rights court.
To safeguard human rights effectively, the court must be vigilant against undue influences and adopt an approach that prioritises universal rights and rational discourse to succeed as a human rights court. This implies that certain theories become more suited than others for a human rights court.
ASGEIR FALCH-ERIKSEN
Discourse theory appears to offer the most robust defence. By insisting on transparent, reasoned deliberation and upholding the intrinsic dignity of each individual by virtue of their humanity, it ensures that only arguments aligning with fundamental human rights are accepted. This approach helps maintain consistency in the application of human rights across Europe, resisting attempts by bad amicus to undermine these standards. It also becomes an originalist approach to the court, as it elevates the purpose of establishing the court itself after the atrocities of the Second World War.
The margin of appreciation is vital to the European human rights system, balancing national discretion for the democratic rule of law with enforcing universal rights. However, its interpretation can significantly affect the interpretation and protection of these rights. By adopting a discourse-theoretical approach, the ECtHR can better resist the influence of bad amicus, ensuring that human rights are upheld consistently and that “friends of the court” truly act in the interest of justice and human dignity.
This blog post is based on a chapter in the forthcoming book Child Protection and the European Court of Human Rights: Lessons from Norway in the Development and Contestation of Children’s Rights (eds. Helland, Skivenes & Gloppen)