Danielle Morris and Stephanie Forrest, along with Naboth van den Broek and others, spoke at the 47th Canadian Council on International Law Annual Conference last week on a panel titled “Granting States a Margin of Appreciation: Deference in International Law.”
In recent years, a number of respondent states have argued that international courts and tribunals must accord a “margin of appreciation” when determining the legality of governmental measures under international law. Many international courts and tribunals have rejected this argument outright. Others have granted a “margin of appreciation” when assessing whether a state’s conduct has violated its international treaty obligations, or have mechanically transposed formulations of the margin of appreciation doctrine as applied by the European Court of Human Rights (ECtHR). When this human rights doctrine is applied, it generally calls for deference to the measures imposed by a state, which precludes the adjudicator, to a greater or lesser extent, from reviewing the decisions of national authorities. Is this an appropriate standard of review? Does the ECtHR’s margin of appreciation doctrine clearly define the scope of deference that should be afforded to governmental measures?
The panel addressed these issues and discussed the applicability of the margin of appreciation doctrine in a number of areas of international law, including European human rights law, international investment law and WTO law. The speakers considered the history and origins of the margin of appreciation doctrine, the basis (or lack thereof) for the doctrine under different international treaties, and the alternative standards of review that international courts and tribunals may apply.