Skip to main content Accessibility help
Hostname: page-component-99c86f546-t82dr Total loading time: 0.255 Render date: 2021-12-01T10:58:30.379Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action

Published online by Cambridge University Press:  28 June 2013

University of Reading, School of Law, Foxhill House, Reading, RG6 7BA, UK


Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.

Research Article
Copyright © Cambridge University Press 2013 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)


1 Teubner, G, ‘“Global Bukowina”: Legal Pluralism in the World Society’ in Teubner, G (ed), Global Law Without a State (Dartmouth, Aldershot, 1997) 3.

Google Scholar

2 Rajagopal, B, ‘The Role of Law in Counter-Hegemonic Globalization and Global Legal Pluralism: Lessons from the Narmada Valley Struggle in India’ (2005) 18 Leiden Journal of International Law 345.

CrossRefGoogle Scholar

3 Berman, P, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155.

Google Scholar

4 Where it is typically known as ‘constitutional pluralism’. See further e.g. Walker, N, ‘The Idea of Constitutional Pluralism’ (2002) 65 Modern Law Review 317; MacCormick, N, Questioning Sovereignty (OUP, Oxford, 1999).

5 See e.g. Krisch, N, ‘The Open Architecture of European Human Rights Law’ (2008) 71 Modern Law Review 183.

CrossRefGoogle Scholar

6 Though also relevant to the ECHR because of the ‘subsidiary’ role of the Court vis-à-vis the member states under art 1.

7 Though Gerards, cf J, ‘Pluralism, Deference and the Margin of Appreciation Doctrine’ (2010) 17 European Law Journal 80, who has suggested that the MoA could also helpfully be used in an EU context.

CrossRefGoogle Scholar

8 Berman (n 3) 1201, 1207.

9 Except perhaps in the limited, procedural sense adopted by Berman, who normatively advocates mediating devices like the MoA as being useful mechanisms for managing hybridity (n 3) 1164.

10 Mahoney, P, ‘Judicial Activism and Judicial Self-Restraint in the European Court of Human Rights: Two Sides of the Same Coin’ (1990) 11 Human Rights Law Journal 57; and, especially, Mahoney, P, ‘Marvellous Richness of Diversity or Invidious Cultural Relativism?’ (1998) 19 Human Rights Law Journal 1, 4.

11 Golub, J, ‘Sovereignty and Subsidiarity in EU Environmental Policy’ (1996) 44 Political Studies 686, 692.

CrossRefGoogle Scholar

12 Dudgeon v UK, No 7525/76, 22 October 1981, Series A No 45.

13 See e.g. Mahoney (1990) (n 10) 83.

14 See e.g. Mahoney (1998) (n 10) 5; Ovey, C, ‘The Margin of Appreciation and Article 8 of the Convention’ (1998) 19 Human Rights Law Journal 10.

Google Scholar

15 Connors v UK, No 66746/01, s 82, 27 August 2004. See also eg Buckley v UK, 26 September 1996, s 74, Reports of Judgments and Decisions 1996-IV.

16 Hatton and Others v UK [GC], No 36022/97, s 88, ECHR 2003-VIII.

17 Budayeva and Others v Russia, Nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008.

18 s 175.

19 (n 12).

20 s 123: ‘However, the sleep disturbances relied on by the applicants did not intrude into an aspect of private life in a manner comparable to that of the criminal measures considered in Dudgeon to call for an especially narrow scope for the State’s margin of appreciation.’

21 s 122.

22 s 101.

23 Citing its previous decision in James and Others v UK, No 8793/79, 21 February 1986. Its reading of that case was that the domestic policy-maker’s role should be given special weight in relation to ‘matters of general policy, on which opinions within a democratic society may reasonably differ widely’ (s 97). It also (s 100) cited its previous airport noise decision in Powell and Rayner v UK, 1 February 1990, s 44, Series A No 172, with approval, where it had stated that it was ‘certainly not for the Commission or the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this difficult social and technical sphere’ and that ‘this is an area where the Contracting States are to be recognised as enjoying a wide margin of appreciation’.

24 Fadeyeva v Russia, No 55723/00, s 104, ECHR 2005-IV.

25 Art 8 states that ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except as such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the well-being of the country, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

26 ss 129–30.

27 s 103.

28 18 February 1991, Series A No 192.

29 See also Pine Valley Developments Ltd and Others v Ireland, 29 November 1991, Series A No 222, which the Court in Fadeyeva regarded as confirming this approach.

30 [GC], No 48939/99, ECHR 2004-XII.

31 s 107.

32 (n 17).

33 s 134.

34 ss 154–56.

35 E.g. those, as in the case itself, involving a meteorological event (mudslide caused by excessive rainfall) – s 135.

36 s 135. E.g. López Ostra v Spain, 9 December 1994, Series A No 303-C; and Guerra and Others v Italy, 19 February 1998, Reports of Judgments and Decisions 1998-I.

37 In the event, the Court ruled that Russia was in breach, inter alia, of its art 2 substantive obligation, due to its failure to provide information to the public about the risks from mudslides, which it identified as one of the ‘essential practical measures needed to ensure effective protection of the citizens concerned’ (s 152).

38 s 99.

39 s 100.

40 No 59909/00, ECHR 2006-XII; see also Fadeyeva (n 24) s 128.

41 s 80.

42 s 84.

43 s 94.

44 s 93.

45 s 97.

46 Mileva and Others v Bulgaria, Nos 43449/02 and 21475/04, s 98, 25 November 2010; and Connors (n 15), a non-environmental art 8 case, at s 83. See also Grimkovskaya v Ukraine, No 38182/03, s 66, 21 July 2011, where the Court states: ‘[w]hile the Court finds no reason to reassess the substance of the Government’s decision to allow the use of K. Street as a through road, in examining the procedural aspect of relevant policymaking, the Court is not convinced that minimal safeguards to ensure a fair balance between the applicant’s and the community’s interests were put in place’.

47 See Giacomelli, main text above at n 44. See also Dubetska and Others v Ukraine, No 30499/03, s 141, 10 February 2011; and Mileva (n 46): ‘in view of the margin of appreciation enjoyed by the national authorities … it is not in the Court’s remit to determine what exactly should have been done to stop or reduce the disturbance. However, the Court can assess whether the authorities approached the matter with due diligence and gave consideration to all competing interests … In carrying out that assessment, it will have regard to, among other things, whether the national authorities acted in conformity with domestic law’ [98].

48 (n 36).

49 (n 36).

50 Hart, D and Wheeler, M, ‘Night Flights and Strasbourg’s Retreat from Environmental Human Rights’ (2004) 16 Journal of Environmental Law 100, 139. They were, however, more cautious in their own assessment of the ruling.

Google Scholar

51 s 120, references omitted.

52 See e.g. Hart and Wheeler (n 50) 133–4; and Stallworthy, M, ‘Whither Environmental Human Rights?’ (2005) 7 Environmental Law Review 12, 20, who criticize this aspect of the judgment.

CrossRefGoogle Scholar

53 (n 24).

54 Ibid, s 94.

55 Ibid, s 95.

56 Ibid, s 96.

57 Ibid.

58 Ibid, s 97.

59 No 13728/88, Commission decision of 17 May 1990, DR 65, 250.

60 s 98.

61 s 132.

62 Ibid.

63 s 133.

64 s 134.

65 Ashworth and Others v the United Kingdom (dec), No 39561/98, 20 January 2004. Cited by Shelton, D, ‘Developing Substantive Environmental Rights’ (2010) 1 Journal of Human Rights and the Environment 89, 110.

CrossRefGoogle Scholar

66 Ashworth (n 65). As a decision, there are no para numbers.

67 No 4143/02, ECHR 2004-X. Also cited by Shelton (n 65). See also White, R and Ovey, C, Jacobs, White and Ovey: The European Convention on Human Rights (5th edn, OUP, Oxford, 2010) 397.

CrossRefGoogle Scholar

68 (n 30).

69 s 60.

70 ss 61–2.

71 ss 109–110. See also ss 97–8 and 102.

72 s 69.

73 Galev and Others v Bulgaria (dec), No 18324/04, 29 September 2009.

74 Furlepa v Poland (dec), No 62101/00, 18 March 2008.

75 Darkowska and Darkowski v Poland (dec), No 31339/04, 15 November 2011.

76 (n 46).

77 E.g. Furlepa: ‘the mere fact that the construction works had been conducted illegally is not enough to justify the applicant’s assertion that she is the victim of a violation of the Convention … The Court accepts that the applicant could have been affected by the pollution and noise emitted by the garage. However, the Court must determine whether the nuisance attained the minimum level of severity required for it to constitute a violation of Article 8.’ Similar wording can be found in Galev, Darkowska and Darkowski, and Mileva.

78 ss 95–7.

79 Ivan Atanasov v Bulgaria, No 12853/03, 2 December 2010.

80 s 51.

81 s 76.

82 ss 75–6.

83 No 71146/01, 1 October 2008.

84 ss 51–3.

85 No 12605/03, 21 July 2009.

86 ss 101–4.

87 (dec), No 37664/04, 26 February 2008.

88 Ibid. As an admissibility case, there are no para numbers.

89 No 61260/08, 20 May 2010.

90 As well as international WHO standards and those operated in most other European countries (s 60).

91 See ss 49, 52–62.

92 No 30499/03, 10 February 2011.

93 ss 118–19.

94 (n 46).

95 ss 58–62.

96 No 6854/07, 3 May 2011. See ss 95–102.

97 It also mentioned the large-scale breaches of planning permission by the operator. The scale of the permit breach here seems to mark this aspect of the case apart from the earlier, ‘technical’ permit breach cases considered above.

98 Though as we shall see, the S v France case illustrates that an applicant may also bring proceedings in Strasbourg because they are dissatisfied with a domestic ruling which has found in their favour (which they believe does not go far enough).

99 Demir and Baykara v Turkey [GC], No 34503/97, s 160, 12 November 2008.

100 [GC], No 25579/05, s 258, ECHR 2010.

101 ss 263–4.

102 ss 267–8.

103 Taşkin and Others v Turkey No 46117/99, ECHR 2004-X.

104 s 128.

105 s 133.

106 Ibid.

107 ss 135–38.

108 See (n 4).

109 s 115. Hilson, C, ‘Risk and the European Convention on Human Rights: Towards a New Approach’ (2008–2009) 11 Cambridge Yearbook of European Legal Studies 353, has described this development of a procedural side to art 8 in terms of a ‘proceduralisation’ or procedural turn, which may be linked to the influence of the Aarhus Convention on the Court’s environmental case law. On the influence of Aarhus, see also Boyle, A, ‘Human Rights or Environmental Rights? A Reassessment’ (2007) 18 Fordham Environmental Law Review 471.

110 s 117.

111 ss 124–25.

112 Okyay and Others v Turkey, No 36220/97, ECHR 2005-VII.

113 s 61.

114 s 66.

115 Ibid.

116 ss 67–75.

117 (n 92) ss 116–17.

118 s 149.

119 (n 74).

120 (n 83).

121 (n 96) ss 96–8.

122 (n 79).

123 Ibid s 93.

124 Ruano Morcuende v Spain (dec), No 75287/01, 6 September 2005.

125 Ibid. As an admissibility decision, there are no para numbers.

126 No 67021/01, 27 January 2009.

127 The inter alia here including also domestic administrative decisions finding the activities in breach of standards, or publicly available reports indicating a certain level of pollution – both of which were also absent.

128 ss 93–7.

129 And presumably also art 1 of protocol 1.

130 (n 24) s 98. See also Dubetska (n 92) s 141.

131 See e.g. Sadeghi, KC, ‘The European Court of Human Rights: The Problematic Nature of the Court’s Reliance on Secondary Sources for Factfinding’ (2009) 25 Connecticut Journal of International Law 127.

Google Scholar

132 See e.g. López Ostra (n 36) s 55.

133 See e.g. Craig, P, ‘Judicial Review of Questions of Law: A Comparative Perspective’ in Rose-Ackerman, S and Lindseth, PL (eds), Comparative Administrative Law (Edward Elgar, Cheltenham, 2010) 449.

Google Scholar
Cited by

Send article to Kindle

To send this article to your Kindle, first ensure is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

Note you can select to send to either the or variations. ‘’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action
Available formats

Send article to Dropbox

To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action
Available formats

Send article to Google Drive

To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

The margin of appreciation, domestic irregularity and domestic court rulings in ECHR environmental jurisprudence: Global legal pluralism in action
Available formats

Reply to: Submit a response

Please enter your response.

Your details

Please enter a valid email address.

Conflicting interests

Do you have any conflicting interests? *