Process and Meaning

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Department of Law Spring Term 2021

Master’s Thesis in International Human Rights Law 30 ECTS

Process and Meaning

A Coverian Analysis of Animal Defenders International v. UK and the Procedural Turn of the ECtHR

Author: Arvid Skagerlid

Supervisor: Associate Professor Maria Grahn-Farley

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Abstract

In this thesis, the legal theory of Robert Cover is employed to analyse the procedural turn of the ECtHR. The text studies how Animal Defenders International v. the United Kingdom (ADI) and subsequent case law relate to the margin of appreciation doctrine and how this can be understood from a Coverian point of view. The margin of appreciation is thus seen as a product of an interplay between paideic and imperial forces where the imperial, or world-maintaining, influences on the doctrine are the strongest. ADI and later cases are read as further accentuating the focus on the nomos of the state relative to competing nomoi already at work in the case law of the procedural turn. The thesis is closed with an amalgamation of Cover’s ideas with the democratic theory of Jacques Derrida which results in a discussion on what a Coverian re-evaluation of the approach outlined in ADI could look like.

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Acknowledgements

It is said that it takes a village to raise a child and I think it takes at least something like a hamlet to write a thesis. First of all, I wish to thank my fiancé Abigail who has supported me in so many ways – from listening and commenting on my ideas to raising my spirits when I was doubting myself. I also want to say a great thank you to my supervisor Maria Grahn-Farley for both guiding and pushing me deeper into Cover’s theory as well as the ECtHR’s case law. Helena Borgå is well-deserving of a thank you for very valuable feedback during the opposition of this thesis. I also want to thank Paul Linden-Retek, Marco Goldoni, Elena Namli, Patricia Mindus and Johan Landström for encouragement and advice leading up to and during my work on this thesis. Lastly, I feel obliged to thank Robert Cover who despite his untimely passing managed to inspire so much discussion and writing – including a law student in Uppsala of all places.

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List of Contents

1 Introduction ... 6

1.1 Background ... 6

1.2 Disposition ... 7

1.3 Purpose and Research Questions ... 7

1.4 Method ... 8

1.5 Material ... 9

2 The General Approach of the ECtHR ... 10

2.1 Introduction ... 10

2.2 Justifying Restrictions ... 11

2.3 Subsidiarity and the Margin of Appreciation ... 12

Development in the Case Law ... 12

The Effects of the Width of the Margin of Appreciation ... 15

The Two Faces of the Margin of Appreciation ... 16

3 Cover’s Theory and the Margin of Appreciation ... 19

3.1 The Narrativity of Law ... 19

3.2 Paideic and Imperial Communities ... 21

3.3 The Imperial Nature of the Margin of Appreciation ... 23

3.4 The Jurispathy of the Margin of Appreciation ... 25

4 Process-based review ... 28

4.1 The Procedural Turn of the ECtHR ... 28

4.2 Case Law Previous to ADI ... 29

4.3 ADI ... 32

The Reasoning of the Court ... 32

The General Measure Doctrine ... 36

4.4 Cases Following ADI ... 38

National Union of Rail, Maritime and Transport Workers v. the United Kingdom ... 38

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Garib v. the Netherlands... 39

Correia de Matos v. Portugal... 40

Other Cases ... 42

Reflections on these Subsequent Cases ... 43

4.5 ADI in Light of the Subsequent Cases ... 44

5 A Coverian Analysis of ADI and the Subsequent Cases ... 46

5.1 ADI, the Margin of Appreciation and the Nomos of the State ... 46

5.2 Process-Based Review and Subsidiarity ... 50

Negative and Positive Subsidiarity and Process-Based Review ... 51

“Dilemma Cases” and “Socio-Economic Policy” Cases... 52

5.3 Pragmatic Rationales for Process-Based Review ... 53

5.4 Process-Based Review and Democratic Legitimacy ... 54

Derrida’s “Democracy to Come” ... 57

5.5 A Coverian Take on the General Measure Doctrine in ADI? ... 60

6 Concluding Remarks ... 64

7 Sources ... 66

7.1 ECtHR Cases ... 66

7.2 Litterature ... 67

Books ... 67

Book Chapters ... 68

Journal Articles ... 69

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1 Introduction

1.1 Background

Where and how should human rights norms be developed? Which groups or institutions are legitimate to be bestowed with this task? Is it international human rights courts, legislative assemblies, schools or social movements? These questions strike at how we understand the nature of human rights norms and what their function is within our communities. It is also connected to the tension between human rights norms and democracy which has sparked discussions all throughout the history of human rights.

In recent years, the above questions can be seen to be given practical expression through parts of the case law of the European Court of Human Rights (the ECtHR or the Court). The last decade or two there has been an ongoing discussion among legal scholars about what is called the procedural turn of the ECtHR.¹ This phenomenon is the increased use of procedural considerations by the Court in its judgments, which means that the processes of the national judiciary, legislature or administration are given more attention in the review of the Court. One aspect of the procedural turn is what in this thesis will be called process-based review, which entails that the Court in its review of the justifications of alleged infringements of Convention rights takes the quality of national decision- making procedures into account. Animal Defenders International v. the United Kingdom (ADI), a case decided in 2013, is regarded as one of the most distinct examples of the procedural turn and the Court’s employment of process-based review.² This case and the Court’s use of process-based review in general should, according to several commentators, be understood in light of the principle of subsidiarity and the margin of appreciation which have been developed in the case law of the Court.³ The main focus of these discussions has been the relationship between the Court and the national legislators or courts. By utilizing the legal theory outlined by the American legal theorist Robert

1 See e.g. Gerards and Brems (eds), Procedural Review in European Fundamental Rights Cases (2017);

Popelier, ‘The Court as a Regulatory Watchdog: The Procedural Approach in the Case Law of the European Court of Human Rights’, in Mazmanyan, Vandenbruwaene and Popelier (eds), The Role of Constitutional Courts in Multilevel Governance (2013), 249; Spano, ‘Universality or Diversity of Human Rights?

Strasbourg in the Age of Subsidiarity’ 14 Human Rights Law Review (2014), 487; Huijbers, Process-based Fundamental Rights Review – Practice, Concept and Theory (2019).

2 Animal Defenders International v. the United Kingdom, ECtHR (GC) 22 April 2013, 48876/08.

3 E.g. Saul, ‘The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments’, 15 Human Rights Law Review (2015) 745; Spano, supra note 1, at 498; Kleinlein, ‘The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution’, 68 International and Comparative Law Quarterly (2019) 91, at 101.

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Cover in his seminal article Nomos and Narrative,⁴ I aim to problematize and complement this discussion. The literature discussing process-based review have mainly concerned the relationship between the Court and the Convention states.⁵ But I believe Cover illuminates how process-based review affects the relationship between the Court and the citizens of the Convention states. Cover’s theory establishes a direct relationship between the Court and the various communities which inhabit a state. I believe his theory is especially suited for trying to illuminate actors and groups which are neither courts, legislators nor other state institutions, and their contributions to how the law is shaped and interpreted.

1.2 Disposition

In section 2 I will introduce the general approach of the ECtHR in its jurisprudence, with a special focus on the subsidiarity principle and the margin of appreciation doctrine. Then I will introduce the legal theory of Robert Cover in section 3 and start to apply it to the subsidiarity principle and the margin of appreciation. Next, I will move on to the procedural turn in the ECtHR’s case law in section 4 where the focus will be on the ADI case and subsequent cases. Thereafter, I will conduct my Coverian analysis of the material of the thesis in section 5 as well as discuss Derrida´s democratic theory as a challenge to the democracy concept in the ECtHR’s case law and how a process-based review inspired by his and Cover’s ideas could be construed. Finally, in section 6 I will recapitulate and offer some concluding remarks

1.3 Purpose and Research Questions

The purpose of this thesis is to analyse process-based review in general, and ADI in particular. I will do this through the theoretical framework sketched out by Robert Cover in his article Nomos and Narrative. I will analyse ADI and related case law from a Coverian perspective which is pluralistic and refuses to give state institutions a privileged position in the interpretation of the Convention. After describing the relevant parts of Cover’s theory and outlining the development and features of process-based review in the case law of the Court I will apply a Coverian analysis to this area of the case law of the ECtHR. I will study if the ADI judgment, from a Coverian perspective, changed the dynamic between the Court, national authorities and extra-state actors. I will first lay out

4 Cover, ‘The Supreme Court 1982 Term Foreword: Nomos and Narrative’, 97 Harvard Law Review (1983) 4.

5 See supra note 1.

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how this relationship normally is shaped, in Coverian terms, by the principle of subsidiarity and the margin of appreciation doctrine. Later in the text I will then study if and how this was changed by ADI and subsequent cases as well as discuss

The questions which will guide the research of this thesis is: How should the margin of appreciation be understood from a Coverian point of view? How did the process-based approach outlined in ADI and subsequent cases relate to this Coverian depiction of the margin of appreciation? And how could a more Cover-inspired process-based review be construed?

1.4 Method

In this thesis I will use a legal philosophical method where I will analyse the ECtHR’s reasoning in ADI and some subsequent cases from the perspective of Robert Cover’s legal theory. Through taking Cover’s perspective as my starting-point, I will test its relevance for ECtHR case law and see how it can help me better understand the procedural turn in general and the ADI case in particular. Although it is not a legal theory which guides the ECtHR and the creation of its case law, I believe Cover’s theory can help me illuminate aspects of its case law which have otherwise been overlooked or understudied. For example, through contrasting the case law of the ECtHR with Cover’s theory I believe I will better be able to see the underlying assumptions that guide the adjudication of the Court. Cover’s theory and its focus on legal meaning will allow me to criticise the case law of the Court from a different perspective than a doctrinal method would.

Referencing Kohler,⁶ Bhat claims that the aim of philosophical research in law is to examine the basis of the powers underlying the realm of the phenomena and analyse what factors move humanity forward.⁷ A philosophical legal method will thus allow me to study the ECtHR’s case law in light of Cover’s legal theory and enable me to discern what underlying powers are at work in the Court’s employment of process-based review.

However, I will also use a doctrinal method when studying how the ADI case and subsequent case law relate to earlier cases which are part of the procedural turn of the ECtHR. I will apply the doctrinal, or black-letter, method of law in how I will try to clarify and reconstruct the case law of the ECtHR and how the Court applies the approach outlined in the ADI judgment. The doctrinal legal method focuses, according to Bhat, on legal propositions pronounced in judgments, legislation and judicial principles and aims

6 See Kohler, Philosophy of Law (1914), at 3.

7 Bhat, Idea and Methods of Legal Research, (2019), at 232-233.

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to establish coherence in the conceptual framework of a legal principle.⁸ But for the main part of my analysis I will apply the ideas formulated by Robert Cover in the article Nomos and Narrative. Thus, I will build my analysis on Cover’s theory of legal meaning. I will take, for example, the margin of appreciation doctrine of the ECtHR and the ADI judgment and reinterpret them with the vocabulary formulated by Cover in Nomos and Narrative. By trying to gauge how these parts of the case law of the Court should be understood in Cover’s vocabulary, I aim to apply my version of his theory in the realm of the ECHR. My analysis is greatly indebted to the works of Seyla Benhabib and Paul Linden-Retek who have both shown how Cover’s theory can be employed in the area of human rights law and European law, as well as how Cover’s theory can be used in combination with the work of Jacques Derrida.⁹

1.5 Material

The central object of the analysis of this thesis is the judgments of the ECtHR. It is these I will study and build my analysis on. I will use my conceptualisation of Cover’s theory to analyse and scrutinize them. The ADI judgment is at the centre of the thesis. Focusing on the ADI judgment will give the thesis a clear focus and will keep my analysis structured and centred. Earlier judgments have been chosen to help make sense both of the emergence of process-based review in the case law of the ECtHR and of the ADI case and what the judgment of the Court actually entailed. Cases decided after ADI have been chosen to illuminate how the Court has since used the approach it sketched out in ADI.

Furthermore, I will use judgments which precede the ADI judgment to compare and deepen my analysis of ADI and subsequent case law.

I chose the ADI judgment as the main focus of the thesis because it has been widely discussed in the literature on the procedural turn and because it is one of the clearest and most articulate examples of where process-based review has played a decisive role in the reasoning of the Court. ADI does not illustrate the whole of the Court’s engagement with process-based review, even less so the procedural turn. However, it is perhaps the single case where the Court has been clearest in its explanation of the rationale behind its

8 Ibid., at 164.

9 See especially Benhabib, ‘Democratic Iterations: The Local, the National, and the Global’, in Benhabib and Post (eds), Another Cosmopolitanism (2006) 45; Benhabib, ‘Claiming Rights across Borders:

International Human Rights and Democratic Sovereignty’, 103 The American Political Science Review (2009) 691; and Linden-Retek, ‘Cosmopolitan Law and time’, 4 Global Constitutionalism (2015) 157. But also, Linden-Retek, ‘History, System, Principle, Analogy Four Paradigms of Legitimacy in European Law’, 26 Columbia journal of European Law (2020) 1.

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increased reliance on procedural considerations. This will allow me, when I study ADI, to analyse this underlying rationale and scrutinize it in Coverian terms.

The case law following ADI was selected based on references in articles written about this case as well as through searching for cases in HUDOC referencing the ADI case and dealing with at least some aspect of the process-based review outlined in the test employed by the Court in that case. Earlier cases have been selected based on a review of the literature on the subject and in presenting them I aim to give the reader a sense of the procedural turn as well as using them as backdrop for my analysis of the ADI case.

To better understand the ECtHR case law, I will also use books and articles which comment on various aspects of it. These will allow me to better conceptualize and understand the different judgments and the doctrine of the ECtHR. I will furthermore use the commentaries and analysis of these authors in my own argumentation and analysis to either use and build upon their ideas or compare and make my own stance clearer through contrasting it with theirs.

For devising my theory, I will mostly rely on Nomos and Narrative, but I will also use articles written by other authors who have commented on or applied Cover’s theory in various ways. These other authors will help me apply Cover’s ideas to my material in a meaningful way.

2 The General Approach of the ECtHR

2.1 Introduction

The ECHR entered into force in 1953 and the ECtHR was established in 1959.¹⁰ The Convention is set up to protect human rights and political freedoms and is considered one of the world’s most important and influential human rights documents.¹¹ The ECtHR plays the main role in the system set up to monitor compliance to the ECHR by Convention states. The Court has a unique position as an international court adjudicating cases originating in sovereign states.¹² Through its case law the Court has developed various principles which are central to its adjudication and has established a structure for its rights review.

10 Gerards, General Principles of the European Convention on Human Rights (2019), at 1.

11 Keller and Stone Sweet, ‘The Reception of the ECHR in National Legal Orders’, in Keller and Stone Sweet (eds) A Europe of Rights: The Impact of the ECHR on National Legal Systems (2008) 3, at 3.

12 Gerards, supra note 10, at 3.

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When the Court reviews whether or not an applicant’s Convention right has been infringed it typically does this through a three-step approach.¹³ First, the Court considers whether one of the Convention provisions is applicable at all. Gerards calls this the stage of determination of applicability and interpretation.¹⁴ Second, the Court has to find that the right has been interfered with.¹⁵ This is called the stage of determination of an interference. The last step in the Court’s rights review is that, if it has found that there is an interference with a Convention right, the Court has to investigate whether it is possible to justify this interference and, if so, if such a justification exists in the case at hand.¹⁶ This last stage is called the stage of justification of restrictions.

Process-based review is only relevant where it is possible to justify an interference with a Convention right. Thus, it cannot be applied where the right in question is an absolute, or non-derogable, right. This also means that the Court must go through the first two stages of its rights review to ascertain that a right is applicable and that there indeed has been an interference. Only after this, in the stage of justifications of restrictions, will the Court use the process-based review to decide whether the interference was necessary and thus justified.

2.2 Justifying Restrictions

In the stage of justification of restrictions, the Court must first investigate if it is at all possible to provide a justification for an interference. Certain rights are considered absolute or non-derogable.¹⁷ This means that no limitation of these rights can ever be accepted. Rights that do not fall into this category are considered non-absolute or derogable rights.¹⁸ Hence, these rights can, on varying grounds and to varying degrees, be limited by the Convention states.

If it thus is possible to make a justification for an interference, the Court moves on to the second part of its assessment in the stage of justification of restrictions. This entails an assessment of the relevant arguments made by the parties against the requirements and

14 Ibid.

15 Ibid.

16 Ibid.

17 Examples of non-derogable rights are the prohibition of torture and inhuman treatment or punishment in Article 3 ECHR and the prohibition of slavery in Article 4(1) ECHR.

18 Gerards distinguishes between four kinds of non-absolute or derogable rights: Derogable rights with express, specific limitation clauses Derogable rights with express, general limitation clauses Derogable rights without express limitation clauses, which allow for implied or inherent limitations; and Other non- absolute or derogable rights. See Gerards, supra note 10, at 19.

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conditions which are relevant to the case at hand.¹⁹ If the Court can find no sufficient justification, the interference with a Convention right will be deemed a violation of the Convention. The possibilities and conditions for a restriction depend on the Convention right but there are several general requirements and principles that apply to most Convention rights. Examples of these are the requirements of lawfulness, a legitimate aim and of a fair balance between the interest involved in a case.²⁰

2.3 Subsidiarity and the Margin of Appreciation Development in the Case Law

The principle of subsidiarity is a principle central to the Convention system as a whole.²¹ It is linked to the principle of primarity which is expressed in Article 1 of the Convention and entails that it is the national authorities that are primarily responsible for securing the Convention rights “to everyone within their jurisdiction”.²² The principle of subsidiarity on the other hand puts the Court in responsibility of checking whether the Convention states have upheld their obligations under the Convention. These principles were first elaborated in the Belgian Linguistics case.²³ In this case the Court stated that:

“[T]he Court cannot disregard those legal and factual features which characterise the life of the society in the State which, as a Contracting Party, has to answer for the measure in dispute. In so doing it cannot assume the rôle of the competent national authorities, for it would thereby lose sight of the subsidiary nature of the international machinery of collective enforcement established by the Convention.

The national authorities remain free to choose the measures which they consider appropriate in those matters which are governed by the Convention. Review by the Court concerns only the conformity of these measures with the requirements of the Convention.”²⁴

Thus, it is not for the Court to rule on what exact measures the Convention states should implement to live up to the Convention. Instead the review of the Court only concerns

20 Ibid., at 198-199.

22 Article 1, European Convention on Human Rights.

23 Case “Relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (Belgian Linguistics case), ECtHR 23 July 1968, 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64.

24 Ibid., para. I.B.5.

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whether the measures at hand are in conformity with the provisions of the Convention and it is up to the state parties themselves to choose how to live up to the requirements in the ECHR.

The Court then further outlined the principles of subsidiarity and primarity in Handyside v. the United Kingdom which has come to be seen as a cornerstone in the case law of the ECtHR. In Handyside the Court also launched the concept of the margin of appreciation, which can be seen as a practical manifestation of the subsidiarity principle.

Harris et al states that the margin of appreciation can be described as meaning that the Court allows the state some room for discretion, subject to the ECtHR’s supervision, in applying legislative, administrative or judicial measures which affect a Convention right.²⁵

In its judgment in the Handyside case the Court first elaborated on the primarity of the rights protection in each state party. Thus, it pointed out that “the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights […] The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines.”²⁶ When further explaining the rationale behind affording the State Parties a margin of appreciation in certain cases, the Court stated: “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.”²⁷

Then the Court went on to focus on its own role in the Convention system and further formulated the principle of subsidiarity:

“Nevertheless, Article 10 para. 2 (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. Such supervision concerns both the aim of the measure challenged and its "necessity"; it covers

25 Harris, O’Boyle, Bates and Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (4^th ed., 2018), at 15.

26 Handyside v. the United Kingdom, ECtHR 7 December 1976, 5493/72, para. 48.

27 Ibid.

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not only the basic legislation but also the decision applying it, even one given by an independent court.”²⁸

Since Handyside, the margin of appreciation has been applied to other Convention articles.²⁹ Harris et al claims that the subsidiarity principle acts as a theoretical basis for deference by the ECtHR when it considers the State’s compliance with their obligations under the Convention.³⁰

The principle of subsidiarity and the margin of appreciation was developed in the case law of the Court. However, in recent years their importance has been given formal expression through the adoption by the state parties of Protocol no 15 to the Convention.

Once this protocol enters into force, the last paragraph of the preamble of the Convention will read:

“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”

This codification of the subsidiarity principle and the margin of appreciation doctrine is not meant to change anything in the way they are developed in the case law of the Court.

However, some commentators have argued that Protocol 15 is part of a process where the Court is developing its concept of subsidiarity.³¹ Furthermore, cases like ADI and the procedural turn in general are from this perspective seen as examples of this process. This development should according to some commentators³² be seen in light of the criticism against the Court for being too “activist” which has come from politicians in countries such as the United Kingdom, Denmark, the Netherlands, and Switzerland.³³

28 Handyside v. the United Kingdom, para 49.

29 Harris et al., supra note 25, at 15.

30 Ibid., at 17.

31 See e.g. Saul, supra note 3; Kleinlein, supra note 3, at 101.

32 Lewis, ‘Animal Defenders International v United Kingdom: Sensible Dialogue or a Bad Case of Strasbourg Jitters?’, 77 Modern Law Review (2014) 460, at 474; Cumper and Lewis, ‘Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights’, 68 The International and Comparative Law Quarterly (2019) 611, at 622-623.

33 Cameron, An Introduction to the European Convention on Human Rights (8^th ed., 2018), at 78.

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The Effects of the Width of the Margin of Appreciation

The Court applies the margin of appreciation doctrine in a differential manner where the width of the margin in a certain case depends on the context.³⁴ Areas where states are generally afforded a wide margin of appreciation are cases concerning the protection of public morals,³⁵ cases concerning social and economic policy³⁶ and cases regarding public emergencies under Article 15.³⁷ On the other hand, the Court will for example generally give the states only a narrow margin of appreciation in cases concerning an especially important aspect of an individual's identity or existence.³⁸

What are the effects of a wide or narrow margin of appreciation? If a wide margin of appreciation is afforded the national authorities, the Court will limit its review and only conduct a rather shallow assessment of whether the results of their choices are (clearly) unreasonable or disproportionate.³⁹ In cases with a wide margin of appreciation the Court may also use a rather procedural test and state that a violation cannot be found since the assessment made by the national authorities is not found to be arbitrary or manifestly unreasonable.⁴⁰ If the margin of appreciation afforded to the state party is deemed to be a narrow one on the other hand, the Court will do a deeper review of the facts of the case and itself identify and weigh the competing interests as well as deciding how a fair balance should be struck.⁴¹ In these cases, the burden lies on the national authorities to prove that the interference was the product of a careful assessment and balancing of interests and that the aim of the interference was weighty enough.⁴² Furthermore, if the margin of appreciation is narrow the Court will often apply a strict test of necessity where it cites examples of less intrusive measure which could have been employed to achieve the same aim or criticises the Convention state for not allowing for a more individual judgment on the national level.⁴³ However, there are also many cases where the

35 See e.g. Handyside v. the United Kingdom, ECtHR 7 December 1976, 5493/72.

36 E.g. James and Others v. the United Kingdom, ECtHR 21 February 1986, 8793/93; Hatton and Others v.

the United Kingdom, ECtHR (GC) 8 July 2003, 36022/97.

37 Leander v. Sweden, ECtHR 26 March 1987, 9248/81, para. 67.

38 Dudgeon v. the United Kingdom, ECtHR 24 February 1983, 7525/76; Christine Goodwin v. the United Kingdom, ECtHR 11 July 2002, 28957/95.

39 See e.g. James and Others v. the United Kingdom, ECtHR 21 February 1986, 8793/93, para. 51.

40 E.g. Fretté v. France, ECtHR 26 February 2002, 36515/97, para. 42; Maurice v. France, ECtHR 6 October 2005, 11810/03, para. 123; Dimitar Yordanov v. Bulgaria, ECtHR 6 September 2018, 3401/09, para. 55.

42 E.g. Connors v. the United Kingdom, ECtHR 27 May 2004, 66746/01, para 94.

43 E.g. Informationsverein Lentia v. Austria, ECtHR 24 November 1993, 13914/88, paras 39 and 42;

Fuentes Bobo v Spain, ECtHR 29 february 2000, 39293/98, para 49, and S. and Marper v. the United Kingdom, ECtHR 4 December 2008, 30562/04 and 30566/04, paras 119-20.

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respondent state is left “a certain” margin of appreciation or just “a” margin of appreciation.⁴⁴ These formulations signal a scope of the margin of appreciation somewhere in between a wide and a narrow one and thus calls for some kind of intermediate level of review.

Harris et al describe how the margin of appreciation doctrine is used by the Court to give a certain measure of deference to the assessment made by domestic authorities when they balance conflicting individual and public interests with respect to their local knowledge and the subsidiarity principle.⁴⁵ Cameron has contended that the margin of appreciation doctrine in essence is a doctrine of judicial restraint.⁴⁶ It is thus a tool used to gauge the level of deference the Court should show the state in a particular case. As has been shown in this section, it does this through adjusting its review according to the width of the margin afforded to the state in the particular case.

To further deepen my analysis of the rationale behind the margin of appreciation doctrine I will now turn to some theorists who have studied different ways in which the margin of appreciation is used in the case law of the Court. This will allow me to better conceptualize how the doctrine is a result of the Court’s unique role as an international human rights court.

The Two Faces of the Margin of Appreciation

Gerards claims that in Handyside the ECtHR grounded the margin of appreciation in the subsidiary role of the Court but also in the so-called “better placed” argument.⁴⁷ She portrays the subsidiarity of the Court in the Convention system as an institutional reason for the margin of appreciation since it is based on institutional considerations between the Court as an international institution and the Convention parties as sovereign states.⁴⁸ The

“better placed” argument she calls an epistemic reason because it is based on the idea that national authorities are in a better position than the Court to deal with factual or legal assessments within their national systems.⁴⁹ Gerards further claims that the strength of the epistemic reason might vary from case to case depending on for example how close

44 E.g. Kuric and Others v. Slovenia, ECtHR (GC) 26 June 2010, 26828/06, para. 387; Eweida and Others v. the United Kingdom, ECtHR 15 January 2013, 48420/10, paras. 84 and 88; K.S. and M.S. v. Germany, ECtHR 6 October 2017, 33696/11, para. 42; Lupeni Greek Catholic Parish and Others v. Romania, ECtHR (GC) 29 November 2016, 76943/11, paras. 89 and 102.

46 Cameron, supra note 33, at 121.

48 Ibid., at 160.

49 Ibid., at 162.

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of an assessment of the national situation is needed for the necessity test or how much hinges on an interpretation of the rules and principle of the Convention.⁵⁰

In his article Two Concepts of the Margin of Appreciation, George Letsas analyses the margin of appreciation in the Court’s case law. Letsas writes from an interpretivist perspective, which means that he draws inspiration from the work of the American legal theorist Ronald Dworkin.⁵¹ According to Letsas, “the role of human rights lawyers and judges should be to construct substantive theories that aim to capture the nature or purpose of the right involved and the ECHR more generally”.⁵²

Letsas holds that the margin of appreciation doctrine can be conceptualized as consisting of two different ways in which it is utilised by the Court.⁵³ The first one, which he calls the substantive concept, is how the margin is used deal with “the relationship between individual freedoms and collective goals”.⁵⁴ The second one he calls the structural concept and it entails how the margin of appreciation is used to address the limits or intensity of the review of the Court in light of its status as an international court.⁵⁵ Through the substantive concept, the margin of appreciation is used decide whether a state, in a particular case, has violated a Convention right.⁵⁶ The substantive concept of the margin of appreciation has been used most prominently through the accommodation clauses of Articles 8-11 of the ECHR.⁵⁷ The structural concept on the other hand concerns the ECtHR’s standing as an international court. This is, according to Letsas, the form of margin of appreciation which finds its support in the idea of subsidiarity.⁵⁸ This use of the margin of appreciation builds on the idea that the ECtHR, as an international court, should be more limited in its power to review decisions made by national authorities than national constitutional courts or similar bodies monitoring compliance with a national bill of rights.⁵⁹

51 See Dworkin, Law’s Empire (1986) chapters 2 and 3.

52 Letsas, ‘Two Concepts of the Margin of Appreciation’, 26 Oxford Journal of Legal Studies (2006) 705, at 706.

53 Ibid.

54 Ibid., at 706.

55 Ibid.

56 Ibid., at 712.

57 Ibid., at 710. The accommodation clauses afford states a ‘power’ or ‘margin’ of appreciation to interfere, in pursuit of certain specified legitimate aims, with the rights and freedoms protected by these Convention articles.

58 Ibid., at 712.

59 Ibid., at 721.

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Letsas further claims that some commentators and, most importantly, the Strasbourg institutions themselves have developed an approach based on the idea that assessments made by national authorities are normatively superior to those conducted by international institutions.⁶⁰ This approach holds that national authorities “have either more legitimacy or are better placed than an international body to decide on human rights issues” which implies that the Court must show deference.⁶¹ This can be seen in the

“better placed” argument.

Drawing on the work of Letsas, as well as that of Legg,⁶² Arnardóttir speaks of two elements, rather than concepts, of the margin of appreciation in the case law of the ECtHR.⁶³ She makes a distinction between a systemic and a normative element of the margin of appreciation.⁶⁴ The systemic element grows out of the different competences of actors such as the ECtHR and the state parties in the Convention system and influences the division of duties between them.⁶⁵ The normative element on the other hand grows out of a normative justification connected to pluralism and flexibility and influences the interpretation and application of rights.⁶⁶ Whereas the systemic element concerns

“deference to other decision-making bodies for non-merits reasons”, the normative element concerns “the Court’s own assessment of merits reasons”.⁶⁷ In contrast to Letsas, who claimed that only the structural concept of the margin of appreciation was a result of the subsidiarity principle, Arnardóttir holds that both the systemic and the normative element of the margin of appreciation flow from the principle of subsidiarity.⁶⁸

Both the structural concept of Letsas and the systemic element of Arnardóttir deals with the Court’s standing as an international Court in relation to the sovereign Convention states. This is the kind of margin of appreciation which this thesis concerns itself with. In cases incorporating process-based review, it is the structural or systemic margin of appreciation and its concern with the ECtHR’s status as an international court which animates the reasoning of the Court. After having studied the ECtHR, its general approach

60 Letsas, supra note 52, at 722.

61 Ibid.

62 See Legg, The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (2012).

63 Arnardóttir, ‘Rethinking the Two Margins of Appreciation’, 12 European Constitutional Law Review (2016) 27.

64 Ibid., at 41-42.

65 Ibid., at 42.

66 Ibid., at 42.

67 Ibid., at 53.

68 Ibid., at 41.

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and central principles such as the subsidiarity principle and the margin of appreciation, I will now turn to the theoretical perspective which will guide the analysis of this thesis.

The theory Robert Cover presented in Nomos and Narrative is distinctive from most other legal theories and therefore I will try to explain it rather thoroughly.

3 Cover’s Theory and the Margin of Appreciation

3.1 The Narrativity of Law

In his seminal article Nomos and Narrative Robert Cover introduced his own vocabulary with which he could formulate a distinctly unique legal theory. Cover contends that “[n]o set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture.”⁶⁹ Thus, this is a theory which puts the study of law within a wider normative and cultural context.

According to Cover we live in a nomos, “a normative universe” where “[w]e constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.”⁷⁰ This nomos is as central to our understanding of the world as the physical universe.⁷¹ The individual finds herself in the nomos, or put differently: the nomos precedes the individual. Normative behaviour can only be meaningful to us because of the nomos we share with others – this function of the nomos is mediated through narratives.

Narrative is an essential component of the workings of any nomos. Narratives are what, according to Cover, locate and give meaning to legal institutions or prescriptions.⁷² To Cover, normative behaviour becomes intelligible only through the collective narratives which provide the context of such behaviour.⁷³ Legal prescriptions demand to be “located in discourse - to be supplied with history and destiny, beginning and end, explanation and purpose”.⁷⁴ We cannot understand any set of legal institutions or legal prescriptions isolated from these narratives. Thus, you can never separate a legal provision from the meaning that it is given, with the help of narrative, in our normative universe, our nomos.

69 Cover, supra note 4, at 4.

70 Ibid., at 4.

71 Ibid., at 5.

72 Ibid., at 4.

73 Ibid., at 10.

74 Ibid., at 5.

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Cover’s theory in Nomos and Narrative thus puts legal meaning at the centre. One can say that it is a theory of legal meaning more than it is a theory of law. Legal meaning is what make precepts intelligible to us in our shared normative universe. He illustrates this by saying: “There is a difference between sleeping late on Sunday and refusing the sacraments, between having a snack and desecrating the fast of Yom Kippur, between banking a check and refusing to pay your income tax.”⁷⁵ When we understand that an act is in reference to a norm, it comes to signify something new and powerful.⁷⁶ Without the meaning that our shared narratives fill our provisions with, they are not properly law in Cover’s eyes. Cover emphasizes this ability of law to “imbue action with significance”, to convey meaning, in our shared normative universe. The creation of legal meaning is a process which takes place through discourse in our various interpretive communities.

It is in these communities that our various nomoi are grounded and built. The creation of legal meaning is a collective and social process.⁷⁷ An interpretive community is the unit which constitutes a nomos and it centres around a common corpus, even though this corpus does not need to be written down. It is also a discursive community as it is the source, as well as, one of the main objects of narratives. In Cover’s theory, normative behaviour only makes sense in, and therefore is dependent upon the existence of, a discursive community. Thus, we live in a world of various overlapping nomoi. Each nomos is created within its own interpretive community and these communities can be small or big, with sectarian tendencies or universal claims.

In Nomos and Narrative Cover illustrates the interpretive community with the examples of the Mennonites and the Amish, especially with regard to their interpretation of the freedom of religion. These are relatively isolated communities which makes it easier to discern the workings of their nomoi and the narratives of their communities. This also shows that to Cover, the nomos requires no state and the creation of legal meaning

“takes place always through an essentially cultural medium”.⁷⁸

The term jurisgenesis is used by Cover to connote “the creation of legal meaning”

while jurisgenerative is used to describe the processes through which legal meaning is created.⁷⁹ These terms thus point to how interpretive communities “do create law and do

76 Ibid., at 8.

77 Ibid., at 11.

78 Ibid.

79 Ibid.

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give meaning to law through their narratives and precepts” – they point to the potential of these communities to create their own law and legal meaning.⁸⁰

Cover’s understanding of law has consequences for how we should view and comprehend aspects of the case law of the ECtHR, such as the subsidiarity principle and the margin of appreciation. I contend that from a Coverian perspective these two are seen as statist, or state centred. As has been mentioned, Cover situates the creation of legal meaning in the nomoi of the various interpretive communities. Cover contrasts law as meaning with law as social control.⁸¹ Whereas the former concerns how law is made intelligible to us, the latter concerns how law allocates power and influences our behaviour. It is Cover’s contention that law as meaning should be considered just as necessary to our understanding of law as law as social control. He claims that while “[t]he precepts we call law are marked off by social control over their provenance, their mode of articulation, and their effects”, the meaning of a precept is always “’essentially contested,’ in the degree to which this meaning is related to the diverse and divergent narrative traditions”.⁸² In other words, while the articulation and effects of legal precepts are controlled by institutions like the state, the meaning of the precept is contested through the different narratives arising out of the various nomic communities. These narratives battle over being able to influence the meaning of the precept.

Before I go on to the Coverian analysis of the subsidiarity principle and the margin of appreciation doctrine, the concepts of paideic and imperial communities which describe how communities can deal with the tension between law as meaning and law as social control need to be introduced.

3.2 Paideic and Imperial Communities

Cover argues that there are two ideal types of interpretive communities – the paideic, or world-creating, community and the imperial, or world-maintaining, community. It should be emphasized that these are only ideal types and that no real community can ever be fully paideic or imperial. In paideic communities a common body of precept and narrative is taught and studied and a correlation is drawn between obedience and understanding.⁸³ In such communities the discourse is “initiatory, celebratory, expressive, and performative, rather than critical and analytic” and interpersonal commitments are

81 Ibid., at 10, 17-18.

82 Ibid., at 17.

83 Ibid.

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reciprocal.⁸⁴ In a paideic community both the individual and the community experience a sense of growth as they work out the implications of their law.⁸⁵ Cover likens this community to the Jewish rabbinic tradition or to how Christians relate to the church.⁸⁶

In imperial communities on the other hand, which the civil community is the clearest example of, “norms are universal and enforced by institutions”.⁸⁷ These norms do not need to be taught, what matters is that they are effective.⁸⁸ The discourse in this kind of community is based on an objective perspective and weak interpersonal commitments.⁸⁹ Imperial virtues are justified by the need to work out the coexistence of different nomoi.

There is a certain dynamic at play between these two ideal types, however. Within a paideic community, legal meaning is never monolithic – there is always differing interpretations: “Differences arise immediately about the meaning of creeds, the content of common worship, the identity of those who are brothers and sisters.”⁹⁰ Paideic communities are forced to deal with this “radical instability” of its nomos through expulsion and exile.⁹¹ This problem of the multiplicity of meaning pushes a community towards embracing imperial virtues and the imperial mode of world maintenance.⁹² In this way the imperial mode answers to an inherent problem in the paideic ideal type of community. It brings order and solidity into a world where new legal meanings are constantly created by the jurisgenerative processes of the discursive communities. The imperial community on the other hand is unable on its own to produce legal meaning, which instead grows out of the paideic mode of world creation.⁹³Cover goes on to say that in the modern nation-state, particularly in the United States, the social organization of legal precepts looks a lot like an imperial community, while the social organization of the narratives that bestow these precepts their meaning is more akin to a paideic community.⁹⁴

85 Ibid.

86 Ibid.

87 Ibid., emphasis in the original.

88 Ibid.

89 Ibid.

90 Ibid., at 15.

91 Ibid., at15-16.

92 Ibid., at 16.

93 Ibid.

94 Ibid.

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3.3 The Imperial Nature of the Margin of Appreciation

The ECtHR, as an international court adjudicating cases originating in various sovereign states, finds itself in a challenging position. It must balance between adjudicating on the Convention rights in a clear and cohesive way on the one hand and avoiding overstepping its limits and going into areas where the states feel like they should be left alone on the other hand. It does this through the subsidiarity principle and the margin of appreciation doctrine. Both Letsas and Arnardóttir point to the idea that, as an international court, the ECtHR should be more limited in its review than a national court would be. This is in turn a reflection of the Convention’s status as a treaty of international law and the central role played by states in the structure of international law. Both the subsidiarity principle and the margin of appreciation are thus based on rationales regarding the structure of and distribution of competencies in the Convention system. What Letsas call the structural concept of the margin of appreciation, what Arnardóttir calls the systemic element of the margin of appreciation and what Gerards calls the institutional reason for the margin of appreciation all point to this. The margin of appreciation has grown out of a concern regarding the Court’s role as an international court dealing with claims arising from sovereign states. The margin of appreciation, when used this way, is used to balance between the interests and competencies of the Court on the one hand and the national authorities on the other.

The margin of appreciation doctrine can be understood in light of the interplay between paideic and imperial forces. The clash between all the various interpretations of the Convention articulated both through the nomoi of the Convention states as well as the nomoi of extra state communities are part of the justification behind a structure which can bring order and solidity into the Convention system. However, the difference between the legal traditions, and thus the nomoi, of the European states at the same time call for a certain degree of flexibility – of judicial deference on the part of the ECtHR. Gerards argues that the strength of the margin of appreciation doctrine lies in the flexibility and variability that it offers the Court when it is adjudicating interferences with different Convention rights in various contexts.⁹⁵

The margin of appreciation doctrine is an expression of imperial virtues through how it tries to solve the coexistence of the various legal systems of the states and their varying levels of rights protection. It tries to create conditions for both an effective

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Convention and differences in rights protection. Thus, it is a world-maintaining, imperial principle. It deals with the division of institutional power. In Cover’s words, the margin of appreciation doctrine “imposes the discipline of institutional justice upon norms, and places the constraint of peace on the void at which strong bonds cease”.⁹⁶ The margin of appreciation is imperial in how it builds on the idea of tolerance, of trying to achieve coexistence between different nomoi. The European community built around the Convention, if one can talk about such a community, is thus more of an imperial community than a paideic one.

Sathanapally explains that although the ECtHR shares important similarities with national constitutional courts – such as its dominant position in the interpretation of the ECHR⁹⁷ – it has to deal with a situation very different from that of a national court in that it “deals with a varied group of legal systems and traditions of policy and government”.⁹⁸ Cover’s theory places the creation of legal meaning in the various nomic communities which inhabit the Convention states. It thus directs the attention given to the different legal traditions and governments towards smaller, more paideic looking communities. From a Coverian perspective, the margin of appreciation doctrine is statist in how it takes the national authorities’ interpretation of the Convention as its starting point. It is only the interpretation applied by the domestic authorities which is given a margin of appreciation and it is only if the interpretation of the Convention made in the state nomos is deemed to go outside of the relevant margin of appreciation that alternatives are considered.

However, the “better placed” argument shows that within the margin of appreciation doctrine there seems to be an appreciation of knowledge of and contact with the nomic communities that inhabit the states. In Handyside it is formulated that “their direct and continuous contact with the vital forces of their countries” is what justifies the deference shown to the states.⁹⁹ This epistemic justification for the margin of appreciation is thus grounded in how the states are in closer contact with other nomic communities than the Court is. But the margin of appreciation looks at these communities from an

97 Stone Sweet claims that the ECtHR “performs many of the same functions that powerful national constitutional courts do, using similar techniques, with broadly similar effects”. See Stone Sweet, ‘A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe’. 1 Global Constitutionalism (2012), 53, at 77.

98 Sathanapally, ‘The Modest Promise of ‘Procedural Review’ in Fundamental Rights Cases’, in Gerards and Brems (eds), Procedural Review in European Fundamental Rights Cases (2017) 40, at 61.

99 Handyside v. the United Kingdom, para. 48.

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imperial perspective. It is simply a rule about who is most suited to make the judgments between these warring communities and visions. Its function is not to encourage the processes creating legal meaning.

It is also important to point out the jurisgenerative potential of the ECHR and the Convention system. In fact, Stone Sweet calls the ECHR “both a source and product of jurisgenerative processes”.¹⁰⁰ The vague formulations of the Convention articles can thus be used in the jurisgenerative processes of the nomic communities which create legal meanings which compete with those created within the processes of the state institutions.

The interplay between the paideic mode and the imperial mode thus leads to the establishment of the imperial margin of appreciation doctrine.

It is important to remember that the imperial mode of law is not necessarily bad. In Cover’s theory it is just as important as the paideic mode for the life of the law in how it brings order and stability into the world of constantly evolving legal meaning. What Cover criticizes is when the law is controlled and constrained without any elaboration on or commitment to the chosen meaning.

3.4 The Jurispathy of the Margin of Appreciation

Rather than to create law, Cover claims that courts are set up to choose which of all the various laws or legal meanings created in interpretive communities should live and which should be put to the sword of the state.¹⁰¹ “It is the multiplicity of laws, the fecundity of the jurisgenerative principle, that creates the problem to which the court and the state are the solution.”¹⁰² Cover uses the term jurispathic to describe this suppressing function of courts.¹⁰³ The margin of appreciation doctrine dictates which level of flexibility in the implementation of the Convention is acceptable and which is not. In this way it is ultimately jurispathic. Where various interpretations of the Convention rights created in different nomic communities claim to be the right one, the margin of appreciation is used to decide which institution’s decision shall be the final one – whether the decision made by the national authorities can stand or if it should be replaced by the Court’s decision.

The margin of appreciation thus focuses on the pedigree of a legal meaning – that it is the chosen legal meaning of the domestic authorities – rather than the legal meaning itself.

Thus, in a Convention system made up of various states and communities with their own

100 Stone Sweet, supra note 97, at 55.

102 Ibid., at 40.

103 Ibid.

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understanding of what the Convention provisions entail, it is the task of the Court to choose which law to let live and which to put to the sword. The margin of appreciation doctrine is a tool used by the Court to decipher when it should defer to the judgment of the national authorities and when it should instead apply its own decision.

The violence of the state is instrumental for the jurispathic nature of the courts – the coercion this violence induces is what allows judges to destroy or try to destroy the competing legal meanings. According to him, it is the state’s control of the means of violence which puts it in a special position in the process of the creation of legal meaning.

Violence is described by Cover as a powerful test of the interpretive commitments which frame the legal meaning of communities.¹⁰⁴ Thus, the jurisgenerative processes of paideic communities are juxtaposed with the violence wielded by the state. Coercion is the enemy of jurisgenerativity. As Cover puts it, “in the domain of legal meaning, it is force and violence that are problematic”.¹⁰⁵

The principle of subsidiarity and the margin of appreciation doctrine need to be understood in view of the violence and the coercive power of the state. Within the Convention system it is the Convention states and not the ECtHR who control the means of violence. The Court is to a great extent dependent upon the compliance of the states for the effective implementation of the Convention rights. The need on the part of the Court to balance between developing clear and cohesive jurisprudence on the scope of the Convention rights and giving some leeway to the domestic authorities is not only a product of the sovereignty and greater democratic legitimacy of the Convention states but also a product of the fact that the states are in control of the means of violence. The subsidiarity principle and the margin of appreciation can thus be understood as tools used by the Court to deal with its own lack of coercive power in relation to the Convention states.

According to Cover, courts are jurispathic by nature. Thus, what is more interesting to us than the jurispathic nature of the margin of appreciation is how it can be understood to be used by the Court to deal with its own jurisptahic role. In elaborating on the margin of appreciation the Court elaborates on institutional competences rather than on its commitment to the legal meaning whose life it spares. This is what made Cover so critical of judge’s employment of jurisdictional principles. To hide the jurispathic nature of their

105 Ibid., at 25.

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judgments, judges use the principles of jurisdiction as a screen which obscures their lack of explicit commitment to the violence of the state.¹⁰⁶ When the Court through the margin of appreciation expound on whether the state has acted within the limits of its competence, it does not explicitly explain why it choses the chosen legal meaning but can instead confine itself to articulating that the state has acted within its margin of appreciation. This critique is of course most potent regarding cases where the margin of appreciation afforded to the state is wide. Cover argues for courts to act on the basis of a “committed constitutionalism” where they make their commitment to the chosen law explicit.¹⁰⁷ This would enable interpretive communities, even if the judgment went against them, to answer by reinforcing their commitment to their own legal meaning. This “committed constitutionalism” breaks free from the violence of the law through its clear commitment to a legal meaning which refuses to “align the interpretive acts of judges with the acts and interests of those who control the means of violence”.¹⁰⁸

Harris et al explain that the margin of appreciation doctrine works on the presumption that the national authorities basically work in line with the rule of law and that the Court can rely upon their assessment and presentation of the national situation.¹⁰⁹ This presumption on the part of the Court is related to how the Court can be seen to use the margin of appreciation to avoid making its own commitment in a case. It is part of how the lines between the competences of the Court and the jurisdiction of the national authorities are drawn. In deciding which institution is most competent to have the final say in a case, the Court thus works on the presumption that the national authorities are acting properly and that their assessment and procedures can be relied upon. However, as I will show, process-based review seems to test this presumption and can thus partly be understood as a way for the Court to be more transparent in its reasoning for deferring to the Convention states or not.

I will now study what the procedural turn and process-based review are and how it has taken shape in the case law of the Court. Then I will analyse the Court’s reasoning in the ADI case and some cases which followed it.

107 Ibid.

108 Ibid., at 57.