The Convention contains an inherent tension between, the one hand, the aim to provide effective protection of Convention rights and, on the other hand, the need for the ECtHR to allow sufficient freedom to the States and respect their special abilities and powers to make choices and decisions, also in light of the inherent indeterminacy of the Convention provisions. It is against this backdrop that the Court has developed its famous yet complex margin of appreciation doctrine, on which this chapter is focused. Insight is given into the development of this doctrine in the Court’s case law, its main rationale and functions, and the types of cases where the doctrine is (and is not) applied. In addition, the main factors determining the scope of the margin and their interaction are explained (common ground facter, better placed factor, nature and intensity of the interference). Finally, some attention is paid to the difference between doctrine and reality in the Court’s case law.

The chapter investigates the claim of the environmental minimum that environmental interests must be balanced with competing considerations, and that neither can be presumed to have priority in the abstract. This becomes particularly relevant when considering cases where states justify infringements of human rights by invoking their duty to prevent environmental harms. Not every conceivable measure in furtherance of environmental protection is porportionate in light of its impact on other rights. The question specifically for the ECHR case law is whether justificaitons for environmental regulations challenged by applicants are balanced with and can be outweighed by competing interests. In principle, the ECtHR accepts that environmental regulations can give rise to infringements of Convention rights and acknowledges that regulations must be proportional to the established threat of environmental harm. The chapter then turns to discusses an enduring area of concern, namely the acceptance of vague economic justifications for environmental harm and the unprincipled application of the margin of appreciation doctrine.