The concept of the ‘margin of appreciation’, i.e. the discretionary latitude that authorities are said to have in reaching a certain goal towards the full realization of ESC rights, cannot be said to constitute an overarching principle of ESC rights jurisprudence. The doctrine has been applied in a limited manner to certain CP rights by the European Court of Human Rights (ECtHR).[258] However, the principle of margin of appreciation has particularly been used within the ECtHR in cases that involve public or general interest and decisions around socio-economic policies.[259]
The standard of margin of appreciation has thus essentially been developed by the ECtHR jurisprudence and has been largely adopted by State parties to the ECHR in their domestic jurisprudence. In addition to the reference to this standard by the German Constitutional Court in the Existenzminimum case described above, the transposition of the standard in domestic jurisprudence is further exemplified in a decision by the Danish Supreme Court from 2012 regarding unemployment benefits of foreigners.[260]
→ A v. Municipality of Egedal and Ministry of Labour
Although it has been effectively used in certain cases before the ECtHR to protect the right to housing of disadvantaged individuals, there are significant risks to the effectiveness of ESC rights litigation carried by the adoption of this doctrine, by which courts’ standards of review are rendered highly deferential to the executive.
In this regard, it is worth noting that after some debate during negotiation, States rejected the inclusion in the Optional Protocol to the ICESCR of a variation on the concept.[261]
- 258. See inter alia Handyside v. United Kingdom, European Court of Human Rights Judgment, Application No. 5493/72 (1976), para. 48; and Evans v. the United Kingdom, European Court of Human Rights, Application No. 6339/05 (2007), para. 77.↵
- 259. In 1991, in its decision on admissibility of the application No.16756/90 on an alleged violation of the right to peaceful enjoyment of his possessions, ZAMMIT and others v Malta, the European Commission of Human Rights affirmed that the wide margin of appreciation afforded to States in regulating housing problems should be borne in mind. In particular, the Commission recalled its case-law and the one case of the ECtHR “which recognises that State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit. In this area, the margin of appreciation available to a legislature in implementing social and economic policies is necessarily a wide one both with regard to the existence of a problem of public concern warranting measures of control and as to the choice of the rules for the implementation of such measures. The Convention organs will respect the legislature’s judgement as to what is in the general interest unless it be manifestly without reasonable foundation.” Based on this jurisprudence, the ECtHR for instance in Fleri Soler and Camilleri v Malta, Application no. 35349/05 (2006), reaffirmed that “in the implementation of policies of a socio-economic nature, the margin of appreciation of the State was very wide”. See also Ghigo v Malta, Application no. 31122/05 (2006) in which the ECtHR accepted “the Government’s argument that the requisition and the rent control were aimed at ensuring the just distribution and use of housing resources in a country where land available for construction could not meet the demand. These measures, implemented with a view to securing the social protection of tenants … were also aimed at preventing homelessness, as well as at protecting the dignity of poorly-off tenants …”.↵
- 260. A v. Municipality of Egedal and Ministry of Labour, Supreme Court of Denmark, Case 159/2009 (2012). ↵
- 261. During the negotiation of the OP-ICESCR, States rejected a proposal to include the “margin of discretion” as a standard of review to be used by the CESCR; instead the standard of “reasonableness” was adopted. For the text of article 8.4 before the last round of negotiation, still including the reference to margin of discretion, see Revised Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in UN Doc. A/HRC/8/WG.4/3 (28 March 2008), p. 6. For the final text of article 8.4 retaining only reasonableness, please refer to United Nations General Assembly, Resolution UN Doc. A/RES/63/117 (2008), p. 4.↵