—E Wen Wong, The Australian National University
In Chief of Defence Force v Four Members of the Armed Forces (“Four Members”), the Supreme Court of New Zealand adopted the language of the “margin of appreciation” into its domestic rights-adjudication framework. Although this borrowing from the European Court of Human Rights appears intended to delineate the boundaries of judicial restraint, it risks reproducing the ECtHR’s ritualistic and opaque deployment of the doctrine. Drawing on lessons from Strasbourg, I argue that New Zealand’s adoption of the term “margin of appreciation” provides a useful framework for enhancing analytical clarity in rights adjudication, but only if deployed as a transparent device for calibrating the intensity of review.
The Margin of Appreciation: Uses and Justifications
The margin of appreciation is widely regarded as an “important” and “politically necessary” instrument for the ECtHR. The margin provides national authorities with a degree of latitude in limiting protected rights, by calibrating the intensity of the Court’s proportionality review. The importance of the margin is reflected in two principal justifications (see Letsas and Arnardóttir). Functionally, the doctrineensures a systemic distribution of institutional competences, reflecting the Court’s subsidiary role in the Convention system and the view that domestic authorities are better placed to assess limitations on rights. Normatively, the doctrine provides “pluralism and flexibility” in rights interpretation. When the Court clearly and correctly delineates the scope of the margin, and applies it consistently with clear standards of review, the margin enhances clarity and predictability in rights review. Properly used, the doctrine increases transparency in the Court’s reasoning and promotes a “culture of justification”.
Inconsistent and Ritualistic Application in the ECtHR
Scholars and ECtHR judges have long criticised the Court’s inconsistent and ritualistic use of the margin (see Kratochvíl). The Court has invoked the margin in some cases, but not in others with comparable facts, suggesting a rote “recitation of a formula with a hollow content”. In many judgments, the Court invokes the margin cursorily, only in the conclusion, or without specifying its width. One study found that in two-thirds of cases invoking the margin, the Court did not state its width. In other cases, the Court (mis)calibrates the margin’s width with opaque reasoning, or inconsistently applies the determining factors. In yet other cases, the Court’s stated width does not correspond with its intensity of review. This practice reveals an inconsistent, pseudo-technical use of the margin.
Inconsistent and ritualistic application of the margin risks trivialising the doctrine and the broader human rights project. Inconsistency erodes legal certainty and predictability, while rhetorical invocation suggests that the ECtHR is failing to use the margin for the purpose of calibrating the intensity of review. Instead, the Court appears to employ the doctrine to “assure States that it is not an active court but a deferential one”, or as a “smokescreen”, “black box”, or “ritual formula” (see Kratochvíl and Gerards).
Transposing the Margin: Structural and Conceptual Risks
In Four Members, the Supreme Court of New Zealand invoked a “margin of appreciation” to assess whether a Temporary Defence Order, providing for the service review of members of the Armed Forces not fully vaccinated for COVID-19, was “demonstrably justified in a free and democratic society”. Citing Tipping J in Hansen v R (“Hansen”), the Court stated that it affords the legislature and administrative officials “a reasonable margin of appreciation in the choice of measure” (at [97]). However, in Hansen, Tipping J only drew a “conceptual parallel” between the margin and its domestic equivalent, acknowledging that domestic courts should not “read-across” the Strasbourg doctrine (at [105], [114]).
The Supreme Court’s (mis)application of Hansen parallels Sales J’s approach in R (S) v Secretary of State for Justice (UK) (at [47], [48], [56]). Sales J quoted Laws LJ who had previously acknowledged the relationship between the margin of appreciation and domestic deference. However, Sales J interpreted this to mean the margin was hard-wired into Convention rights, such that domestic courts should pass the margin onto the Parliament or Executive. Similarly, while Tipping J in Hansen was careful to maintain the conceptual distinction between the margin and domestic deference, the Court in Four Members arguably collapsed it by rejecting the Human Rights Commission’s invitation to eschew the term “margin of appreciation” (at [102]).
In Four Members, the Supreme Court justified the domestic margin on democratic and institutional competence grounds (at [97], [103]), mirroring the normative and functional justifications for the European margin. However, this parallel is imperfect. The European margin mediates vertical deference from a supranational authority to national authorities, whereas domestic deference is horizontal, between the judiciary and the executive or legislature. The ECtHR has itself stated, in A. and Others v United Kingdom that the doctrine “cannot have the same application to the relations between the organs of State at the domestic level” (at [184]).
Transposing the margin without appreciating the differences between verticaland horizontaldeference risks rights-limiting misinterpretations. In particular, national authorities may misconstrue wide margins as a form of “human rights clearance”, as Austria appeared to do in relying on S.A.S. v France to justify its own ban on face-coverings. Further, as Megret warns, a “decentralised understanding” of the margin may bolster Quebec’s Bill 21, which prohibits public servants from wearing religious symbols. If courts such as the Belgian Constitutional Court systematically misinterpret the margin as inviting domestic judicial restraint, it is even morelikely that courts outside the European Convention system will misinterpret the doctrine. Indeed, as Geiringer notes, New Zealand’s “habit of comparativism, if not handled with care, can serve to obscure the extent to which local context nevertheless conditions the response of the domestic courts to particular legal doctrines”. Thus, transposing the margin risks misinterpretation, with tangible consequences for the standard of rights review.
Translating the Margin: From Contextual to Intensity Review
If the Supreme Court’s use of margin language is understood as a translation, rather than a transplantation, it may strengthen rights adjudication through intensity-based review. In rejecting the Human Rights Commission’s invitation to eschew margin language, the Court in Four Members reasoned that New Zealand courts had long employed a range of terms to conceptualise the weight to be accorded to the decision-maker, and saw no reason to confine itself linguistically (at [102]). If the term “margin of appreciation” simply denotes a structured framework for weighting institutional roles, it could serve a clarifying function. As discussed above, a well-calibrated margin can enhance the transparency, clarity, and predictability of rights review, and promote a culture of justification. In particular, margin language may facilitate a shift from contextualism to an intensity-based model of review.
The Supreme Court of New Zealand has followed what Knight describes as a “contextual review” approach to rights cases. This approach involves “open-textured, normative appraisal[s]”, and abandoning doctrinal devices in favour of “the ordinary judicial task of weighing… competing considerations”. Such an approach may yield the same opacity and inconsistency criticised in ECtHR practice. Whereas, properly applied, the margin of appreciation represents an “intensity of review” approach: a doctrinal framework for explicitly calibrating the strictness of review. The intensity of review may be expressed as a “sliding scale” or as discrete standards of review. Discrete standards may be preferable, as a sliding scale risks descending into contextual review and its associated opacity. Indeed, the ECtHR’s own inconsistent application of the margin has been described as a sliding scale. Knight found that the intensity of review approach performs better than, or as well as, contextual review against all of Fuller’s principles of legality. Thus, consistent and precise use of margin language in New Zealand Courts may enhance analytical transparency, predictability, and legitimacy of rights adjudication.
Nonetheless, two conditions are essential for effective translation of the margin. First, contrary to the Court’s statements in Four Members (at [102]), New Zealand courts must consistently use the term “margin of appreciation” if the concept is to have its intended effect. Linguistic inconsistency risks confusion, undermining efficiency and clarity, and weakening the normative force of judicial review. Second, the Court must clearly calibrate and apply the margin, to avoid the inconsistencies and ritualistic excesses that plague the ECtHR. Indeed, in Four Members the Court referred to its need to decide how closely to review the decision-maker’s justifications, and that parties need to anticipate the Court’s approach to a claim (at [149]). To achieve the latter, New Zealand courts must clearly specify and apply the domestic margin. For example, they must calibrate the margin consistently with the institutional and subject matter factors specified in their jurisprudence. Courts should consistently apply less intense scrutiny when the decision-maker is Parliament and it has manifested its decision in primary legislation, and in matters involving major political, social, or economic decisions, with minimal legal content (see, eg, Hansen at [116]-[117]).
Conclusion
The margin of appreciation remains a valuable doctrine, not only within the European Convention system, but as a conceptual framework for enhancing clarity, predictability, and transparency in rights adjudication, and promoting a culture of justification. However, the ECtHR has failed to fully realise these advantages due to its inconsistent and ritualistic application of the doctrine, which has diminished its explanatory power and obscured its purpose. New Zealand’s adoption of margin language presents both risks and opportunities. New Zealand Courts must be wary of the dangers of “reading-across” the margin of appreciation from Strasbourg. However, if properly translated and reclaimed, the margin of appreciation can encourage a useful shift from the veil of contextualism to the clarity of intensity-based review.
Suggested citation: E Wen Wong, The (Language of) the Margin of Appreciation: From Strasbourg to Aotearoa New Zealand, Int’l J. Const. L. Blog, Nov. 23, 2025, at: http://www.iconnectblog.com/the-language-of-the-margin-of-appreciation-from-strasbourg-to-aotearoa-new-zealand