How Does and How Should Personal and Political Autonomy Considerations Feature in the ECtHR’s Margin of Appreciation?

The role of courts in democratic states is often characterised as a counter majoritarian safeguard to protect individual rights. Yet, as such courts (Waldron 2006) and international courts (Bork 2010; Mounk 2018) in particular have often been as critisised as undemocratic. While the current backlash against international courts is in part driven by populist governments (see Voeten 2020) there may also be a genuine concern for the collective decision-making in democratic states (Bellamy 2014). International human rights courts are in an especially difficult situation as they aim to protect human rights against the very states that have to comply with their judgements and implement them. Therefore, several international courts have developed mechanisms of deference to states. One of these is the European Court of Human Rights’ (ECtHR) margin of appreciation doctrine. The ECtHR grants a wider or narrower margin, in which it follows the state’s authority to determine whether the European Convention on Human Rights (ECHR) has been violated in a particular case. However, when is the deference of international courts to states problematic – undermining their very mandate – and when is it showing due respect for the states’ appropriate scope of discretion? In order to understand this issue, it is not helpful to insist that states are sovereign, since sovereignty is only valuable insofar as it protects popular self-determination and human rights. Therefore, I propose analysing this issue on the basis of interrelated personal and political autonomy. Personal autonomy as an individual’s capacity to freedom of choice required that these fundamental rights are robustly guarantied (Pettit 2012, Chapter 1). Political autonomy refers to the status of individuals as equal norm-givers within their political community and its institutions (Habermas 1996, Chapter 3; Forst 2012, 125–37). This requires the reciprocal recognition as equals not only as subjects of the law but as co-authors of it. Such control as a norm-giver over the rules to which one is subjected is institutionalised through equal participation rights in democratic decision-making. This paper has two aims: First, it considers developments in the case law and practice of the ECtHR and discusses whether and how they can be justified in the light of personal and political autonomy considerations. Second, contributes to a more nuanced understanding of personal and political autonomy itself by drawing on how the ECtHR handles conflicts between them in practice. To do so, it first conducts an analysis of the arguments and normative premises regarding personal and collective autonomy that the European Court of Human Rights brings to bear on three salient cases: SAS v. France, Dahlab v. Switzerland and Strand Lobben v. Norway and considering three mechanisms of deference by the ECtHR: a) the margin of appreciation doctrine, b) appeals to a European consensus, c) “the procedural turn” in how the ECtHR carries out its review.