[citation needed] At the level of the European Convention on Human Rights, a margin of appreciation refers to some "latitude of deference or error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial bodies".
It identified two key elements for establishing a margin of appreciation: a focused consensus standard among 'Convention signatory states' and a proportionality principle in the jurisprudence of the European Convention.
In so doing, it cannot assume the role of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established for the Convention'.The margin of appreciation doctrine received considerable development in 1976, with the Court decision of Handyside v United Kingdom, which concerned the publication of a Danish textbook for primary school children in which sexual behaviour was discussed using explicit terms.
The case that was brought before the European Court challenged whether the United Kingdom could infringe freedom of expression under Article 10 on the ground of protecting moral norms.
The view taken by their respective laws... varies from time to time and from place to place.... By 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'.With that judgment, the European Court reinforced its distinction between the supervisory jurisdiction of the Convention framework and domestic forms of discretion.
[13] However, the official position of the Court is that a margin of appreciation must be derived from 'a just balance between the protection of the general interest of the community and the respect due to fundamental human rights while attaching particular importance to the latter.
'[14] That precedent illustrates some continuity between the original function of a margin of appreciation, as a justified derogation simpliciter, and its present purpose of delimiting rights and freedoms for individuals in relation to state parties.
That is possible because the foundation concept of a margin is essentially abstract in nature and less connected to the core purposes of the convention, especially when it is compared with other interpretive principles like legality or the effective protection of rights.
[17] Since justification for any derogation from the European Convention ultimately rests on the concept of democratic necessity in a society, margins of appreciation are situation-oriented, and the case law on the subject frequently lacks consistency.
That infused the doctrine with a sense of ubiquity and has led to its invocation in major legal developments, including challenges surrounding discrimination as they relate to human rights.
As the European Court decided in Dickson v United Kingdom:[25] 'Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider.
[28] Although many regimes remain formally ambivalent or even negative towards margins of appreciation, the growing influence of Convention law on international norms, in turn, makes the doctrine more attractive to the global community.
This doctrine could only have developed in a European system of protection that was believed to be exemplary, typical of a Western Europe (before 1989) relatively homogeneous in terms of its perceptions of a common historical experience ...