Democracy, diversity and the margin of appreciation: a theoretical analysis from the perspective of the international and constitutional functions of the European Court of Human Rights

Abstract

This article discusses whether the margin of appreciation, as a tool to accommodate diversity and of respect of democratic choices adopted at the domestic level in the field of human rights, can be considered as the result of the combined roles of the European Court of Human Rights, both as an international court of human rights and a constitutional court within the subsidiary nature of the European Convention on Human Rights. From this perspective, and after an analysis of the ECtHR’s legal nature, the main elements of the margin of appreciation doctrine and its impact on the Strasbourg court’s legitimacy, as well as on the accommodation of diversity and the respect of decisions adopted by democratically elected national bodies within the ECHR system are discussed. Particular attention is given to the role of European consensus as a key factor in the establishment of the margin of appreciation that is given to states in the restriction of rights recognized by the Convention.