Corps de l’article

The term Margin of Appreciation cannot be found in any human rights international instruments. It is a judge-made doctrine taken from domestic civil systems such as the French Conseil d’État which uses the term marge d’appréciation, or the German theory of administrative discretion Ermessensspielraum.[1]

The origins of the Margin of Appreciation doctrine can be traced back to the earliest days of the European Convention mechanism, and more precisely to the 1956 inter-State case taken by Greece against the United Kingdom over the troubled situation on the island of Cyprus.[2] The European Commission of Human Rights allowed to the colonial Government (of Cyprus) a certain measure of discretion to decide on the state of emergency.[3]

The existence of a Margin of Appreciation doctrine, its nature, its scope and its very content, still remain a controversial issue. And as professor Canizzaro says, “The very notion of discretion is not easily reconciled with the existence of international obligations, which, by nature, are designed to curtail the otherwise unfettered freedom of States to determine and to implement their course of action.”[4]

However, this doctrine seems well integrated in certain sectors of international justice. The doctrine was first established by the European Court of Human Rights, and was shortly after being applied by the European Court of Justice, the World Trade Organization Dispute Settlement Body, and by other International Courts such as the International Tribunal for the Law of the Sea (ITLOS).[5]

The International Court of Justice (ICJ) jurisprudence concerning the Margin of Appreciation is however inconsistent. In the Oil Platforms[6] and in the Wall in the Occupied Palestinian Territory[7] cases, the Court rejected the doctrine, whereas in the Avena[8] case the Court adopted a “more hospitable attitude towards its application”.[9] Later, the Margin of Appreciation doctrine has been expressly invoked in front of the ICJ by Japan in its dispute with Australia on the Whaling in the Antarctic.[10] Japan contended that it possessed the exclusive competence to issue a special permit to kill, take and treat whales for purposes of scientific research under Article VIII, para 1 of the International Convention for the Regulation of Whaling (ICRW).[11] Allegedly, this competence was based on the existence of a “margin of appreciation”, recognized to every state party to that convention, to determine the meaning of the notion of “scientific research” and the activities related to that purpose. The Court held that the determination of the terms “for purposes of scientific research” is part of the interpretation of Art. VIII of the ICRW and, therefore, cannot be left, in its entirety, to the unilateral determination of one of its parties, that “whether the killing, taking and treating of whales pursuant to a requested special permit is for purposes of scientific research cannot depend simply on that State’s perception.”[12]

I. Introducing the Margin of Appreciation doctrine

A. Definition

The Margin of Appreciation is a doctrine that the European Court of Human Rights has developed when considering whether a member state has breached the Convention. The term refers to “the room for manoeuver the Strasbourg institutions are prepared to accord national authorities in fulfilling their obligations under the European Convention on Human Rights”,[13] or “the latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies before it is prepared to declare a national derogation from the Convention, or restriction or limitation upon a right guaranteed by the Convention, to constitute a violation of one of the Convention’s substantive guarantees”.[14]

For some authors, the notion refers to the power of contracting States in assessing the factual circumstances, and in applying the provisions set by the international human rights instruments.[15] Other authors see in the doctrine a “methodology for scrutiny by international courts of the decisions of national authorities – i.e. national governments, national courts, and other national actors”.[16] It could be defined as « un procédé initialement développé dans la jurisprudence de la CEDH, qui consiste en l’octroi d’une certaine marge de manoeuvre aux États dans l’appréciation de leurs obligations en vertu de la Convention ».[17]

The ECHR has, hence, given states a margin of appreciation to decide if a limitation is “necessary” or not, and if it respects legitimate aims or not.

B. Justification of the doctrine

The doctrine provides a methodology for scrutinizing the decisions of international courts while evaluating the decisions of national authorities. There are many reasons why it has been adopted, but mainly, some reasons appear clearly:

1) Judicial deference. International courts must show some deference to domestic courts or authorities, and some respect for the way they execute their international obligations.[18] Domestic courts are more aware than international courts about the issues at stakes and factual issues.

2) The doctrine provides “normative flexibility” in the interpretation of the law. Indeed, domestic standards can vary from a state to another, and standardization of cultures or believes is not adequate to our modern life.[19] The same principle was applied in the transsexual case X, Y and Z. The United Kingdom[20] concerning the refusal to register post-operative transsexual as a father of a child born to partner by artificial insemination by a donor. The Court stated that, in this case, UK had a wide margin of appreciation since there was no common European standard with regard to granting of parental rights to transsexuals or manner in which social relationship between child conceived by AIDS and person performing the social role of a father should be reflected in law.

In addition, it has not been established before the Court that there exists any generally shared approach amongst the high contracting parties with regard to the manner in which the social relationship between a child conceived by AID and the person who performs the role of the father should be reflected in law. The UK had therefore acted correctly within its margin of appreciation and the rights of X, Y, and Z had not been infringed on.

3) A third point is the link between margin of appreciation and the principle of “sovereignty”. This foundation does not seem unanimously accepted by all HR Courts and bodies.

For the Inter-American Court for Human Rights, the principle of Margin of Appreciation is closely linked to the principle of Sovereignty and reminds us also of the domaine reservé doctrine. Reference to this doctrine was made by the Inter-American Court for Human Rights in a case involving the right to nationality and discrimination, when it stated that:

The Court is fully mindful of the margin of appreciation which is reserved to states when it comes to the establishment of requirements for the acquisition of nationality and the determination whether they have been complied with.[21]

However, for the Human Rights Commission, and even if it recognizes “a certain margin of discretion [that] must be accorded to the responsible national authorities” in deciding whether to broadcast discussions related to homosexual relations in national media.[22]

In another case which addressed Finnish development plans in an area used by the Sami minority, the HRC emphasized that its decision was not based on reference to a margin of appreciation.[23]

C. Criticism addressed to this doctrine

The Margin of Appreciation doctrine has stirred much of controversy among the publicists. The à doctrine is criticized for its inconsistent and opaque modality of operation. The proponents of the certainty of legal rules charge the doctrine for vitiating the normative guidance of substantive rights provisions of the ECHR[24] and fostering normative ambiguity.

Another criticism is that the application of the doctrine introduces subjective, and relativist standards into treaty provisions of human rights treaties, formal sources of international law. For many authors, such tendency could generate judicial double standard,[25] unfairness[26] or bias[27].

The application of the Margin of Appreciation doctrine is considered handicapping the development of judge-made law, constituting an obstacle to elaborating international human rights norms.[28]

Despite all the critics, one can ask the following question: what would remain of a state if one takes away its margin of appreciation? No human rights violation should be tolerated without strong justification, but using its margin of appreciation is not equivalent to escaping from the obligation of justification. Using the margin of appreciation is as good as good governance. Abuses are not tolerated, but responsible governments are exactly what citizens are looking for. This balance is necessary, even vital, for states, so they can always find this balance between opposed rights.

D. Scope of application of the doctrine

The doctrine is applied differently depending on the nature of the rights at stake. For this assessment, one has to go back to the primary notion of absolute and non-absolute rights.

Hence, the rights protected by Article 2 and Article 3 of the ECHR, and article 2, 3 or 6 of the ICCPR are absolute rights, generating obligations for Member States which cannot be balanced either against other rights or against the pursuit of any legitimate interest. However, the lack of consensus among European Union Member States may influence the Court’s opinion that the matter is best left to individual States. In cases where racial or ethnic discrimination is implicated, or when an “intimate aspect of private life” is at stake under Article 8 of the ECHR, for example, there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate.

But also as the ECtHR has noted in Schalk & Kopf v. Austria, “the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background.”[29]

While undergoing proportionality reviews and, in particular, ad hoc judicial balancing of competing rights and interests, states are given only a narrow margin of appreciation in cases where a particularly important aspect of an individual’s identity or existence is at stake, such as the right to family life[30] or where the justification for a restriction is the protection of the authority of the judiciary, especially when similar standards are applied by most of state parties to the ECHR.[31]

States’ margin of appreciation is potentially wider in cases of public emergency,[32] cases involving national security,[33] or involving the “protection of morals”,[34] cases involving legislative implementation of social and economic policies,[35] cases where there is no consensus within the Member States of the Council of Europe, particularly where the case raises sensitive moral or ethical issues,[36] cases where the state is required to strike a balance between competing interests or convention rights.[37]

II. Margin of Appreciation doctrine in the jurisprudence

Margin of appreciation is in fact a margin of discretion granted to states in certain conditions. We will try to frame this notion before studying its content according to the case law of human rights courts, in particular the European Court for Human Rights (ECtHR) and the ICCPR Committee (HCR) since the two bodies are relevant for our paper.

A. Margin of discretion before other Human Rights Courts

Human rights courts other than the ECtHR have usually refrained from adopting an explicit Margin of Appreciation vocabulary.[38] However, few exceptional decisions approved the doctrine. For example, the Inter-American Court of Human Rights has in one of its first Advisory Opinions accepted the doctrine in the context of the right of member states to regulate naturalization procedures.[39] “One is here dealing with values which take on concrete dimensions in the face of those real situations in which they have to be applied and which permit in each case a certain margin of appreciation in giving expression to them.”[40]

Further, many other decisions reveal methodological choices which are consistent with the doctrine – i.e., they provide governments with latitude in the implementation of the relevant treaty norms – without explicitly invoking it.[41] This trend has been pointed out by several authors.[42]

A number of arbitral awards have also adopted ‘margin of appreciation type’ methodology. For example, the Arbitral Tribunal in Heathrow charges held that the UK is entitled to a margin of appreciation in setting airport charges.[43]

B. Margin of Appreciation in the ECtHR jurisprudence

The ECHR gave the State Parties the power to bring limitations to different rights. Limitations to FOE were set in article 10§2, which provides that the right to FOE may be

subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[44]

Reference to the margin of appreciation goes back to the earliest days of the European Convention on Human Rights mechanisms, in the case taken by Greece against UK over the situation on Cyprus, in 1956.[45] But it concerns the lawfulness of a state of emergency imposed by the UK to Cyprus, and other acts of torture or violence that took place around that period.

The notion was tackled soon after in the Lawless case[46] – always about the existence of public emergency – but only in a separate opinion of five Commission members who stated that

a certain discretion – a certain margin of appreciation – must be left to the Government in determining whether there exists a public emergency which threatens the life of the nation and which must be dealt with by exceptional measures derogating from its normal obligations under the Convention.[47]

In the Vagrancy case[48] (arbitrary detention, slavery, ill-treatment, violation of liberty of conscience and religion, etc.), the Court used a slightly different word, finding “that the competent Belgian authorities did not transgress in the present cases the limits of the power of appreciation which Article 8 (2) (art. 8-2) of the Convention leaves to the Contracting States”.[49]

The same wording appeared in the Golder case[50] where the Court stated:

Even having regard to the power of appreciation left to the Contracting States, the Court cannot discern how these considerations, as they are understood "in a democratic society", could oblige the Home Secretary to prevent Golder from corresponding with a solicitor with a view to suing Laird for libel.[51]

The Court adopted the principle in the Engel case[52] where it stated that “Each State is competent to organize its own system of military discipline and enjoys in the matter a certain margin of appreciation”[53], that in respect of hierarchical structure inherent in armies “the European Convention allows the competent national authorities a considerable margin of appreciation”[54], and that the Court “must not in this respect disregard […] the margin of appreciation that Article 10 para. 2 (art. 10-2), like Article 8 para. 2 (art. 8-2), leaves to the Contracting States”.[55]

1. The Handyside case

It is interesting to observe that the first jurisprudence related to the margin of appreciation emerged in a case related to FOE.

The rationale of the Margin of Appreciation doctrine appeared in the jurisprudence of the ECtHR with the Handyside case[56] where the Court states that the “Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines.”[57] The Court believes that:

[b]y reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them”, and that “it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context.[58]

This elbow room is nevertheless submitted to the control of the Court since art. 10§2:

does not give the Contracting States an unlimited power of appreciation. The Court […] is empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected by Article 10 (art. 10). The domestic margin of appreciation thus goes hand in hand with a European supervision.[59]

The Court makes hence the difference between “power of appreciation” and “margin of appreciation”. States’ power being limited by the Convention; it becomes a margin. This margin is granted by the Convention and does not proceed from the States.

This power of appreciation is controlled by the ECtHR. The Court is responsible with the Commission for ensuring the observance of those States’ engagements (Art. 19). It is empowered to give the final ruling on whether a "restriction" or "penalty" is reconcilable with freedom of expression. “Such supervision concerns both the aim of the measure challenged and its ‘necessity’; it covers not only the basic legislation but also the decision applying it, even one given by an independent court.”[60]

As previously said, it is important to highlight the fact that the Handyside concerns FOE. The applicant, Mr. Richard Handyside, was the owner of a publishing firm Stage 1 in London. He published, among other books, The Little Red Schoolbook, which provoked a number of complaints regarding its sexual content, which shocked the media. The judiciary ordered the provisional seizure of all copies, leaflets, posters, etc., related to publication and sales of the book. Despite the order, Handyside continued selling his book and finally he was charged of having twice in his possession obscene books for publication for gain. He was found guilty of both offences and condemned to pay a fine. The judgment also required the destruction of the books. The action against the Schoolbook was based on the Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964.[61]

The applicant filed his complaint on the grounds of Article 10 ECHR violation. Relying on its previous jurisprudence,[62] the Court stated that:

Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force.[63]

However, the Court continued and stated that this margin of appreciation is not open nor absolute. It is restricted by three conditions. The first two restrictions are brought by the text itself: first, it must be shown that the interference in question was necessary in a democratic society for one or more of these exceptions; second, the restriction must be in accordance with, or prescribed by, law. The third condition was brought by the jurisprudence of the ECtHR: the limitation of FOE has to be proportionate to a pressing social need.[64] Therefore, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of "necessity" in this context. The jurisprudence of the ECtHR extended this power to the bodies, judicial amongst others, which are called upon to interpret and apply the laws in force.[65] These conditions will be tackled later in this paper.

2. "Margin of appreciation" jurisprudence in FOE issues

The jurisprudence of the ECtHR is particularly interesting to study when it comes to “qualified rights, which are not absolute and have concomitant limitations expressed within the right itself”.[66]

Articles 8 to 11 of the European Convention for Human Rights fall into this category, and Article 10 protecting FOE is part of this pattern, where the first paragraph of the article sets the rule, the second authorizes States to breach the rule, and the third imposes the conditions for the breach to be lawful.[67] For FOE limitation to be lawful, it has to be “prescribed by a law”, to meet one of the “legitimate aims”, to be “necessary in a democratic society”. The term “necessary” was interpreted as being proportionate to the aims. In any case, it quickly appears that both “proportionality” and “democratic society” were variable notions and allow hence variable margin of appreciation.

The Sunday Times case[68] came three years after the Handyside case. It was about the prohibition of the publication of an article by the Sunday Times newspaper, concerning the thalidomide scandal. The case was still pending before the judiciary. It was considered by the British justice as contempt of Court. The Court held that unlike the concept of morals, the notion of authority of the judiciary is objective, and the domestic law and practice of contracting States reveal a fairly substantial measure of common ground in this area.[69]

The Court also noted in other cases that, when a European consensus on the meaning or need for limitation on particular rights is absent, as it was in Handyside, for example, the margin available to states expands. Conversely, when consensus is present, it means that the meanings are defined with precision, which is reducing the margin for appreciation.[70]

In the Wingrove case, [71] the Court started by reaffirming the lack of European consensus on the requirement of the protection of rights of others in relation to attacks on their religious conviction, the Court found the position of the British Government relevant and sufficient for the purpose of article 10, §2, and stated that this position did not reveal any signs of arbitrary nature or excessiveness.

C. Margin of Appreciation in the ICCPR Committee (HCR) jurisprudence

Adopted in 1966, the International Covenant on Civil and Political Rights (ICCPR)[72] does not mention “margin of appreciation”. However, the Covenant granted the State Parties a “right of derogation” by allowing them to take “measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation.”[73] The ICCPR excluded the possibility of derogating to certain “absolute” rights.[74]

But for non-absolute rights, derogation is possible under certain strict conditions. This is the case of Freedom of Expression consecrated by Article 19, that states in §3:

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.[75]

Interpreting Article 19, UN General Comment n°10 of 1983, recognized to states a margin of appreciation and stated that with “the development of modern mass media, effective measures are necessary to prevent such control of the media as would interfere with the right of everyone to freedom of expression in a way that is not provided for in paragraph 3”,[76] but States did not provide the Committee with any suggestions to understand what “effective measures” can be in this respect, probably preferring to keep a bigger freedom of appreciation rather than being restricted by a text.

The Human Rights Commission has adopted the Margin of Appreciation doctrine, but preferred the use of the term ‘margin of discretion’.

1. Hertzberg v. Finland case

This case concerns Freedom of Expression. Just six years after the Handyside case, the HRC reached a similar conclusion in Hertzberg v. Finland.[77] In Handyside, the Court considered the legality of the United Kingdom’s seizure of a book intended for schoolchildren, parts of which spoke frankly and openly about homosexuality, sex, and drug use. The ECtHR found that the aim of the seizure and destruction judgment as well as the initial seizures of the book — that is, “the protection of the morals of the young” — was legitimate.[78] The Court then determined that the measures used were sufficiently “necessary” to pursue that aim, and it ultimately concluded that no violation of the European Convention had taken place.

The complainants in Hertzberg had produced or appeared in television or radio programs related to homosexuality — programs that were censored by the state-controlled Finnish Broadcasting Company. In its ruling, the HRC noted that:

public morals differ widely. There is no universally applicable common standard. Consequently, in this respect, a certain margin of discretion must be accorded to the responsible national authorities. The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. […] In particular, harmful effects on minors cannot be excluded.[79]

2. Hervé Barzhig v. France case (11 April 1991)

The author of the communication[80] is Hervé Barzhig, a French citizen born in 1961 and a resident of Rennes, Bretagne, France. On 7 January 1988, he appeared before the Tribunal Correctionnel of Rennes on charges of having defaced twenty-one road signs on 7 August 1987. He requested permission of the Court to express himself in Breton, which he states is his mother tongue, and asked for an interpreter. The Court rejected the request and referred consideration of the merits to a later date.[81] The Court of Appeal of Rennes confirmed the first instance court judgment.[82] In both proceedings, he was heard in French.

France pleaded that “the President of the Criminal Appeals Chamber of the Tribunal Correctionnel of Rennes was justified in not applying section 407 of the French Code of Penal Procedure, as requested by the author” and that “In the application of article 407, the judge exercises a considerable margin of discretion”.[83]

However, the Commission did not reply to this particular point, and ended up ruling that, according to the facts disclosed, France did not breach its obligations under the ICCPR.

3. Dominique Guesdon v. France (1990)

Dominique Guesdon is a French citizen who claims to be a victim of violations of Articles 14§1, 3(e) and (f), 19§2, 26, and 27 of the Covenant by France.[84] He is a Breton and that his mother tongue is Breton, which is the language in which he can express himself best, although he also speaks French.[85]

On 11 April 1984, before the Optional Protocol entered into force for France (17 May 1984), he appeared before the Tribunal Correctionnel of Rennes on charges of having damaged public property by defacing road signs in French. He admits that militant Bretons who advocate the use of the Breton language painted over some road signs in order to manifest their desire that road signs be henceforth bilingual. The author never admitted his participation in the offences he was charged with, and claims that he was convicted in the absence of any proof.

On 11 April 1984, the day of the hearing, he requested that twelve witnesses be heard on his behalf. He indicated that all the witnesses and himself wished to give testimony in Breton. This request was refused by the French judiciary at first instance, Appeal and Cassation. France stated that:

the President of the Tribunal of Rennes was perfectly justified not to apply article 407 of the French Penal Code, as requested by the author. This provision stipulates that whenever the accused or a witness do not sufficiently master French, the President of the Court must ex officio request the services of an interpreter. In the application of article 407, the President of the Court exercises a considerable margin of discretion, based on a detailed analysis of the individual case and all the relevant documents.[86]

The Human Right Committee did not answer the issue, this time either, even before the French allegation that the President of the domestic Court has a considerable margin of discretion. The Committee didn’t find any violation of France’s duties under the ICCPR.

4. John Ballantyne and Elizabeth Davidson, and Gordon McIntyre (1993)

The authors of the complaint[87] owe shops in the Province of Quebec and they had installed signs for their shops written in English, to attract English-speaking clients. They were forced to remove their English signs and replace them with French signs, in compliance with Charter of the French Language (Charte de la langue française). They challenged sections 1, 6 and 10 of Bill No. 178 enacted by the Provincial Government of Quebec on 22 December 1988, with the purpose of modifying Bill No. 101, known as the Charter of the French Language (Charte de la langue française).

After, exhaustion of all domestic remedies, they turned to the Human Rights Commission alleging that the aforementioned Bill violates the right to Freedom of Expression and runs contrary to both the Canadian and Quebec Charters of Human Rights; that both the Quebec and federal courts have found in particular that the obligation to use only French on commercial signs and in advertising violated the right of Freedom of Expression and constituted discrimination based on language.[88]

The Government of Quebec rejected the allegations of the authors, claiming that commercial issues are not concerned with FOE which is restricted to “political, cultural and artistic expression and does not extend to the area of commercial advertising” It adds that:

Even if this were not the case, freedom of expression in commercial advertising requires lesser protection than that afforded to the expression of political ideas, and the Government must be allowed a large measure of discretion to achieve its objectives.[89]

The HRC decision re-stated all the conditions and elements of Freedom of Expression:

Under article 19 of the Covenant, everyone shall have the right to freedom of expression; this right may be subjected to restrictions, conditions for which are set out in article 19, paragraph 3. The Government of Quebec has asserted that commercial activity such as outdoor advertising does not fall within the ambit of article 19. The Committee does not share this opinion. Article 19, paragraph 2, must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, of works of art, etc.; it should not be confined to means of political, cultural or artistic expression. In the Committee’s opinion, the commercial element in an expression taking the form of outdoor advertising cannot have the effect of removing this expression from the scope of protected freedom. The Committee does not agree either that any of the above forms of expression can be subjected to varying degrees of limitations, with the result that some forms of expression may suffer broader restrictions than others.[90]

The HCR continues by reaffirming the conditions required for the limitations of FOE:

Any restriction of the freedom of expression must cumulatively meet the following conditions: it must be provided for by law, it must address one of the aims enumerated in paragraph 3(a) and (b) of article 19, and must be necessary to achieve the legitimate purpose. While the restrictions on outdoor advertising are indeed provided for by law, the issue to be addressed is whether they are necessary for the respect of the rights of others. The rights of others could only be the rights of the francophone minority within Canada under article 27. This is the right to use their own language, which is not jeopardized by the freedom of others to advertise in other than the French language. Nor does the Committee have reason to believe that public order would be jeopardized by commercial advertising outdoors in a language other than French. The Committee notes that the State party does not seek to defend Bill 178 on these grounds. Any constraints under paragraphs 3(a) and 3(b) of article 19 would in any event have to be shown to be necessary. The Committee believes that it is not necessary, in order to protect the vulnerable position in Canada of the francophone group, to prohibit commercial advertising in English. This protection may be achieved in other ways that do not preclude the freedom of expression, in a language of their choice, of those engaged in such fields as trade. For example, the law could have required that advertising be in both French and English. A state may choose one or more official languages, but it may not exclude, outside the spheres of public life, the freedom to express oneself in a language of one’s choice. The Committee accordingly concludes that there has been a violation of article 19, paragraph 2.[91] [formatting added]

Once again, the Committee does not address the issue of the Margin of Discretion per se, but while exposing the conditions required for a lawful limitation, the Committee affirms implicitly that any margin of discretion, any assessment of the circumstances leading to the limitation of FOE has to comply with conditions set in §2 of Article 19, i.e. have legitimate aims.

5. Ilmari Lansman at al. case (1994)

This case concerns Ilmari Länsman and forty-seven other members of the Muotkatunturi Herdsmen’s Committee and members of the Angeli local community. They belong to the Sami population in Finland, a minority who lives in the northern part of the country from deer husbandry. The Central Forestry Board decided in 1989 to pass a contract with a private company, which would allow the quarrying of stone in an area covering ten hectares on the flank of the mountain Etela-Riutusvaara, where this population lives and works.

The complainants allege that the contract would not only allow the company to extract stone but also to transport it right through the complex system of reindeer fences to the Angeli-Inari road,[92] which “would disturb their reindeer herding activities and the complex system of reindeer fences determined by the natural environment”.[93] They also stated that “the village of Angeli is the only remaining area in Finland with a homogenous and solid Sami population.”[94] They affirmed that:

the quarrying of stone on the flank of the Etelä-Riutusvaara Mountain and its transportation through their reindeer herding territory would violate their rights under article 27 of the Covenant, in particular their right to enjoy their own culture, which has traditionally been and remains essentially based on reindeer husbandry.[95]

In its answer, Finland pleaded that the requirements of Article 27 have “continuously been taken into consideration by the national authorities in their application and implementation of the national legislation and the measures in question”. But it stated that “a margin of discretion must be left to national authorities even in the application of article 27”. The decision of HCR quotes their statement:

As confirmed by the European Court of Human Rights in many cases..., the national judge is in a better position than the international judge to make a decision. In the present case, two administrative authorities and... the Supreme Administrative Court, have examined the granting of the permit and related measures and considered them as lawful and appropriate.[96]

Finland submitted that the authors can continue to practice reindeer husbandry and are not forced to abandon their lifestyle. The quarrying and the use of the old forest road line, or the possible construction of a proper road, are insignificant or at most have a very limited impact on this means of livelihood. HCR answers clearly:

A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27. Article 27 requires that a member of a minority shall not be denied his right to enjoy his culture. Thus, measures whose impact amount to a denial of the right will not be compatible with the obligations under article 27. However, measures that have a certain limited impact on the way of life of persons belonging to a minority will not necessarily amount to a denial of the right under article 27.[97]

The Committee hence examines the facts according to the rules set by the Covenant, and states he is “of the view that the facts as found by the Committee do not reveal a breach of article 27 or any other provision of the Covenant.”[98]

In few words, a margin of discretion is recognized to states, but within the respect of their international obligations, and with due observation of the conditions of necessity and proportionality of the measures curtailing any freedom for legitimate aims.

6. A.H.G v. Canada (2015)

A.H.G. went to Canada as a landed immigrant in 1980 at the age of eighteen.[99] In 1993, he was diagnosed with paranoid schizophrenia and subsequently treated at hospital for a year and a half. Thereafter, he was treated on an outpatient basis, under supervision. He also suffered from diabetes.[100] From 1995 until 2005, he lived independently and without incident. His history of criminal behaviour began in 2005, when he was evicted from his apartment and started living in shelters. It became difficult for him to manage his schizophrenia and diabetes and comply with his treatment. This resulted in relapses of his schizophrenic symptoms and problems with the judicial system.[101] In 2005, he was found guilty of assault with a weapon assaulted; in 2006, he was found guilty of failing to appear. In May 2007, he was detained by the Canada Border Services Agency and remained on immigration hold until his subsequent removal to Jamaica and on 24 April 2007, the Immigration and Refugee Board ordered his deportation as a result of his conviction for assault with a weapon.[102] He formed an Appeal before the Immigrant Appeal Division, but the Division stressed the seriousness of the offence and determined that the prospects of rehabilitation were low, while risks to the general public were high.

After exhaustion of domestic remedies, he addressed a complaint to HCR. In the exchange of views, Canada stated that it “refers to the Committee’s general comments Nos. 15, 16 and 19, and, recalling that Governments enjoy wide discretion when expelling aliens from their territory […]”.[103] HRC did not give a straight answer to this statement, not to accept the doctrine, no to dismiss it. The terms used by the HRC are very strong, and indicate a situation where discretion to expel does not work:

[…] the Committee considers that the deportation to Jamaica of the author, a mentally ill person in need of special protection who has lived in Canada for most of his life, on account of criminal offences recognized to be related to his mental illness, and which has effectively resulted in the abrupt withdrawal of the medical and family support on which a person in his vulnerable position is necessarily dependent, constituted a violation by the State party of its obligations under article 7 of the Covenant.[104]

The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is of the view that the author’s deportation to Jamaica violated his rights under article 7 of the Covenant.[105]

Moreover, the HRC found that Canada had to provide the author with effective remedy:

In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with effective remedy. The State party is under an obligation to make reparation to the author, by allowing him to return to Canada if he so wishes, and to provide adequate compensation to the author. The State party is also under an obligation to avoid similar violations in the future.[106]

This issue depends in fact on the nature of the right at stake.

D. Is the Margin of Appreciation doctrine applicable before International Criminal Courts?

When the Court takes its decisions, it has the full power to do so, but it has to justify its decision. Once the Court has taken the decision to keep proceedings confidential, any disclosure becomes an offence. The only recourse open is Appeal, but before the same Court. It is clear that checks and balance procedures are not available in what concerns International Criminal Courts. Also, and as some authors state:

So far there has been little discussion before international criminal courts of the standards of review in applying standard-type norms, such as necessity and proportionality. In fact, it may be argued that the special nature of criminal proceedings puts into question the applicability of any general international law margin of appreciation doctrine: since courts sitting in criminal cases exercise judicial supervision over individual conduct, considerations of deference which might be appropriate vis-à-vis state conduct might be irrelevant. At the same time, principles of criminal justice, introduce independent reasons for judicial restraint: for instance, they militate in favour of a cautious approach towards statutory construction (especially interpretation in favour of the accused) and toward a high evidentiary threshold for conviction. Hence, interpretation of criminal norms might raise analogous considerations to the margin of appreciation methodology.[107]

If a state has a margin of discretion, at least we know that internal procedures are available that hinder abuse attempts. Which is not the case in International Criminal Courts, and this is perhaps a weakness that makes peoples rather uncomfortable about International Criminal Justice despite the huge relief to see certain criminals tried and punished for their crimes.

This subject also raises the question of knowing how much International Criminal Courts are bound by international human rights instruments. If FOE was raised before the International Criminal Tribunal for the former Yugoslavia in Hartmann’s case, the cases of Khayat, Al-Amine, Al-Jadeed, and Al-Akhbar before the Special Tribunal for Lebanon did not mention it at all. International Criminal Courts margin of appreciation is probably considered stronger than states Margin of Appreciation.

Originally, “[t]he margin of appreciation was created to allow the European Court of Human Rights to balance state sovereignty with the need to safeguard Convention rights and an individual’s rights against the general interest.”[108]

It is true that there are multiple and conflicting interests to be weighed in relation to an International criminal proceeding.

In addition to considering the rights of the accused and victims in a case, the following must also be taken into account: the protection of witnesses associated with the proceeding; the interest of the international criminal tribunal itself in effectively discharging its judicial role; and the international community’s desire to see a fair and expeditious trial, the end of impunity, and the deterrence of future crimes.[109]

In the meantime, French journalist Florence Hartmann is serving her sentence in a prison in The Hague, for a case that is closed, the accused dead, where the victims could not get remedy, and having been sentenced by a Tribunal that is now nearly closed.