ORCID (Links to author’s additional scholarship at ORCID.org)
This article makes two principal arguments. First, the limitation on restricting rights that is established by Article 18 of the European Convention on Human Rights is the mirror image of the margin of appreciation doctrine created by the European Court of Human Rights. As such, exploring the metes and bounds of Article 18 aids our understanding of that judicially created doctrine. Parts II and III explore this connection and the origins of this limitation on Member States.
The second argument is a practical application of the first one. Russian accession to the Convention and membership in the Council of Europe provides a case study on the importance of Article 18 and the need to overcome a natural reluctance to find that a state has violated it. The deference accorded by the margin of appreciation is the by-product of an assumption of good faith accorded to Member States. When that assumption no longer holds, the Strasbourg Court may be presented not with a case of deserved deference, but of defiance. Article 18 provides the Court with the tool that the drafters of the Convention thought essential to preserve this extraordinary system for protecting human rights.
Some of the Court's critics complain about miserly applications of the margin of appreciation. They assert that a failure to give Member States the respect they are due as sovereigns undermines the Convention. But reluctance to call out restrictions on rights made in bad faith is just as dangerous to the system as underappreciation of legitimate differences in the good faith application of Convention requirements. A failure to sanction Member States that restrict rights in bad faith threatens the Convention not by a deficit of respect but by an unwarranted surfeit of it.
Journal of Transnational Law & Policy
European Convention on Human Rights, Article 18, Good faith doctrine, Margin of Appreciation, Rule of law, Russia, Human rights violations, Khodorkovskiy & Lebedev v. Russia, Navalnyy v. Russia, Council of Europe, International courts
Jeffrey Kahn, The "Anti-Deference" Device: Article 18 of the European Convention on Human Rights, 31 J. Transnat'l L. & POL'y 117 (2021-2022)