Whither the Margin of Appreciation?

The doctrine of the margin of appreciation may be regarded as being among the most prominent judge-made legal constructs in European human rights jurisprudence. It is an analytical tool that guides the European Court of Human Rights in its examination of the complaints raised under many, but not all, provisions of the European Convention on Human Rights and its Protocols. It makes for a body of human rights law that accepts pluralism over uniformity, as long as the fundamental guarantees are effectively observed. Alongside its normative function, the doctrine pursues what may be termed a systemic objective. It devolves a large measure of responsibility for scrutinizing the acts or omissions of national authorities to the national courts, placing them in their natural, primary role in the protection of human rights. It is therefore neither a gift nor a concession, but more an incentive to the domestic judge to conduct the necessary Convention review, realizing in this way the principle of subsidiarity. Protocol No 15, adopted in May 2013 and currently in the process of ratification by the 47 Contracting Parties, will add to the Preamble of the Convention references to both the margin of appreciation and subsidiarity. What are the implications of this reform for the Strasbourg Court? And for national courts?