Margin of appreciation

If one accepts the MoA as a potentially two-sided doctrine, where the Court can either describe the margin as narrow and thus easily find the state in breach, or else as broad, in which case a breach is less likely, then it becomes important to determine the principles or factors which the Court uses, if any, to allocate a case to one or other of these.

Although the Court, across its case law as a whole (i.e., not just environmental cases), has been criticized for its lack of clear principles in this regard,^{Footnote 13} commentators have singled out a number of relevant (sometimes overlapping) factors which seem to influence the Court’s choice.^{Footnote 14} Without claiming to be exhaustive, these include: the existence of consensus across contracting states (if there is wide consensus, then the MoA is likely to be narrow); the nature of the right concerned (the right to property, for example, is more associated with a broad MoA than other, more personal, rights); the nature of the individual interest at stake (where it relates to a particularly significant aspect of an individual’s identity or self-determination, the MoA is unlikely to be broad); the nature of the activity at issue (intimate activities such as sexuality typically give rise to a narrow MoA); the positive or negative nature of the duty imposed on the state (positive duties, which will typically involve more explicit public spending, are more likely to attract a broad MoA); the emergency nature of the state action (emergencies generally producing a broad MoA); and finally, the nature of the counterbalancing public interest or aim pursued by the state (where, for example, this is particularly high, as with national security, or complex, as in technical areas, then a broad MoA is more likely).

A useful statement by the Court which encompasses many of the above can be found in the Connors case:

If one proceeds to examine the Court’s environmental case law in particular, then one finds that while the Court occasionally uses the MoA rather indiscriminately, there are often signs of many of the above principles at work. Although the UK Government raised the lack of consensus in Hatton – pointing towards variation in state practice across Member States in relation to night flights^{Footnote 16} – the Court did not pick up this issue in its own reasoning in the case and neither has it found a foothold in other environmental cases. In many ways this is not surprising: leaving aside harmonized EU standards, the environment is an area in which standards will typically vary across states. Were this to be singled out as a significant factor, then the MoA in environmental human rights cases would very often be broad. It would not, in other words, leave the Court with much room for manoeuvre.

In relation to the nature of the right, in Budayeva,^{Footnote 17} which involved state inaction against risks from mudslides, the Court held that the MoA for states was larger in relation to property under Article 1 of Protocol 1 than under Article 2 of the Convention relating to life.^{Footnote 18}

As for the importance of the right and activities restricted, in Hatton, the applicants claimed that loss of sleep was an activity of a similarly intimate nature to that in Dudgeon ^{Footnote 19} and thus deserving a narrow MoA. However, the Grand Chamber rejected this,^{Footnote 20} preferring to stress instead the nature of the state’s aim. In doing so, it took the opportunity to explicitly reject the initial Chamber’s view that environmental protection was a ‘particularly sensitive field’. While acknowledging that ‘[e]nvironmental protection should be taken into consideration by States in acting within their margin of appreciation and by the Court in its review of that margin’, the Grand Chamber stated that it was not appropriate to adopt a favoured approach to the margin issue ‘by reference to a special status of environmental human rights’.^{Footnote 21} Far from the environment leading to a narrow MoA for the state as the initial Chamber had wanted, the Grand Chamber drew parallels with its case law on land use planning^{Footnote 22} and emphasized the need for a wide MoA in relation to general policy decisions involving social and economic policy.^{Footnote 23}

Nevertheless, in considering the nature of the aim being pursued by the state, one needs to distinguish, as the Court did in Fadeyeva,^{Footnote 24} between two different classes of environmental margin of appreciation case. First, there are cases involving a positive duty to act on the part of the state, where it has failed to take action against pollution or risks and thus allegedly breached that duty. Hatton is a good example of that type of case, involving as it did the issue of the UK state’s positive duty to take appropriate measures to secure the applicants’ rights under Article 8 of the Convention (private and family life),^{Footnote 25} although in the end, the Court there decided that the UK authorities had not overstepped their margin of appreciation and that there was, therefore, no breach of Article 8.^{Footnote 26}

The second type of environmental margin of appreciation case identified by the Court in Fadeyeva, relates to the other side of the coin – where states have taken pro-environmental regulatory action, but this action is then alleged to breach the rights of property owners under Article 1 of Protocol 1 of the Convention. Noting that ‘in recent decades environmental pollution has become a matter of growing public concern’, the Court in Fadeyeva observed that states were increasingly adopting a variety of measures to reduce environmental harm from industry and that, in assessing such measures under Article 1, ‘the Court has, as a rule, accepted that the States have a wide margin of appreciation’.^{Footnote 27} In Fredin v Sweden (No. 1),^{Footnote 28} for example, the Court held that the revocation by the state, on nature conservation grounds, of the applicant’s gravel extraction licence, did not breach Article 1. In doing so, it stated that ‘in today’s society the protection of the environment is an increasingly important consideration’.^{Footnote 29} We thus have a somewhat curious situation whereby the environment, as an aim, is not special in relation to positive duty cases such as Hatton so as to narrow the MoA, but is important or special in relation to negative non-interference cases like Fredin so as to widen the MoA.

While on the subject of positive versus negative duties, it is also worth mentioning Öneryildiz v Turkey,^{Footnote 30} which involved death and property destruction caused by a landfill gas explosion. The Court mentioned the MoA in relation to difficult social and technical areas and yet ruled that installation of a gas extraction system would not have imposed a disproportionate burden on the authorities in terms of discharging its positive obligations.^{Footnote 31} In other words, the case seems to hint that if positive obligations are obviously not too expensive given the scale of the risks, then the Court will have little hesitation in adopting what seems closer to an appellate than a review-based jurisdiction (leaving little discretion to the state, with the Court dictating its own preferred choice of pollution measure).

Finally, the Budayeva case mentioned earlier^{Footnote 32} introduces a new, specifically environmental MoA principle or factor which is not found in the list presented earlier. The case involved positive obligations owed by the state in relation to natural risks from mudslides. The Court emphasized that the state has a MoA in its adoption of specific practical, preventive measures,^{Footnote 33} including a choice as to whether to take active physical steps to reduce the risk or to provide information instead.^{Footnote 34} It also emphasized that in difficult social and technical spheres involving priority-setting and resource allocation, states enjoy a wide margin of appreciation, with an even wider margin for activities associated with natural risks^{Footnote 35} than with dangerous activities of a man-made nature (with the latter, of course, covering most of the Court’s previous, pollution-related case law).^{Footnote 36} It is this emphasis on a wider MoA in relation to natural risks which is novel.^{Footnote 37}

Although that completes discussion of the principles or factors in environmental cases which influence the Court in determining the scope of the MoA, it is worth mentioning an additional important issue relating to the MoA in this area, which relates to the role of procedure. In Hatton, the Court drew a distinction in environmental cases between, on the one hand, an assessment of the substantive merits of the government’s decision, to ensure its compatibility with Article 8 and, on the other, procedural scrutiny of the decision-making process to ensure that due weight had been given to the interests of the individual.^{Footnote 38} The margin of appreciation accorded to the state was said to fall in relation to the substantive element.^{Footnote 39} However, in later cases, the connection of the MoA only with substance seems to disappear, with the MoA also concerning the latter procedural element.

Thus in Giacomelli v Italy,^{Footnote 40} the Lombardy Regional Council had granted permission for a hazardous waste treatment plant just 30 metres from the applicant’s home. The Court drew attention to the wide substantive margin of appreciation enjoyed by states in relation to environmental issues, stating that

However, the Court then went on to rule that, in determining the scope of the margin of appreciation, it was necessary to examine whether due weight was given to the applicant’s interests and whether sufficient procedural safeguards were available to her.^{Footnote 42} Here, the Court pointed to a long-standing failure to uphold the procedural machinery for the protection of individual rights provided by domestic law via a legal requirement for a prior environmental impact assessment and also applicant involvement in the licensing process.^{Footnote 43} The state had failed to comply with its own environmental legislation and had refused to enforce domestic judicial decisions ruling the plant’s activities unlawful.^{Footnote 44} For this reason, the Court held that the state, notwithstanding its margin of appreciation, had not drawn a fair balance between the interests of the community in having a waste treatment plant and the applicant’s enjoyment of her right to her home, private and family life.^{Footnote 45}

Subsequent cases have fastened upon this importance, in determining the margin of appreciation, of ensuring a balance – which procedure can provide – between the competing interests of the individual against the community as a whole.^{Footnote 46} In assessing this balance, the Court will consider, inter alia, the question of domestic legality,^{Footnote 47} which is addressed further in the next section.

Domestic irregularity

Reaction to the Heathrow Hatton night flights case by many environmental lawyers was one of alarm – it was regarded as an extremely negative environmental decision which potentially set back the strong individual rights position that the Court had developed thus far in its environmentally-related Article 8 case law in cases such as López Ostra ^{Footnote 48} and Guerra.^{Footnote 49} Hart and Wheeler, for example, refer to it as having been seen as ‘a body blow to environmental campaigners’.^{Footnote 50} One aspect of the case that was particularly singled out by commentators for opprobrium was the attempt made by the Court to distinguish the facts of Hatton from that previous case law. It is worth quoting the Court’s judgment at length at this stage:

However, far from turning out to be a necessarily negative development from the point of view of the individual to be criticized by those of an environmentalist persuasion,^{Footnote 52} this reference in Hatton to whether there have been breaches of domestic law – or, as the Court put it, ‘domestic irregularity’ – has also proved capable of being a positive development for the interests of individuals and the environment.

This positive direction becomes apparent on examination of some of the post-Hatton case law, including Fadeyeva.^{Footnote 53} In that case, the Court stated that the principles regarding the balance between the rights of the individual and the interests of the community under Article 8(2) were broadly similar regardless of whether the case involved a direct interference by the state or (more common in pollution cases), the breach of a positive duty by the state.^{Footnote 54} However, in cases of direct interference, state action could only be justified if ‘in accordance with the law’ as required by paragraph 2. In such cases, a breach of domestic law ‘would necessarily lead to a finding of a violation of the Convention’.^{Footnote 55} With positive duties on the other hand, states enjoy a margin of appreciation, with the Court observing of the choice of means available that ‘[t]here are different avenues to ensure “respect for private life”, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means’.^{Footnote 56} This meant that the ‘in accordance with the law’ aspect of the paragraph 2 justification test could not be applied in the same way as with cases of direct interference by the state.^{Footnote 57}

In practice, however, what the Court gave to the state with one hand, it then took away with the other: in an almost direct quotation of the Hatton judgment (though without explicitly mentioning that case), it went on to note that ‘at the same time … in all previous cases in which environmental questions gave rise to violations of the Convention, the violation was predicated on a failure by the national authorities to comply with some aspect of the domestic legal regime’.^{Footnote 58} It then cited the cases that had been cited in Hatton to this effect – viz. López Ostra and Guerra – and added one more, S v France ^{Footnote 59} (considered further below) before concluding that ‘in cases where an applicant complains about the State’s failure to protect his or her Convention rights, domestic legality should be approached not as a separate and conclusive test, but rather as one of many aspects which should be taken into account in assessing whether the State has struck a “fair balance” in accordance with [Article 8(2)]’.^{Footnote 60}

Applying these general principles to the facts of the case, the Court in Fadeyeva found that the state had licensed a polluting plant in the heart of a densely populated town and that toxic emissions from this plant ‘exceeded the safe limits established by the domestic legislation’.^{Footnote 61} In response, the state had introduced legislation establishing a sanitary zone around the plant which should have been free of dwellings. However, it had failed to implement this legislation in practice.^{Footnote 62} It had failed to take any appropriate measures (the choice of which lay within its discretion) – whether that be relocating residents from inside the zone including the applicant, or taking action against the plant to reduce pollution to acceptable levels.^{Footnote 63} The Court therefore concluded that there had been a breach of Article 8 because, despite the wide margin of appreciation left to it, the state had failed to strike a fair balance between the interests of the community and the applicant’s right to respect for her home and her private life.^{Footnote 64}

S v France, which was cited in Fadeyeva, involved a (severe) Article 8 amenity nuisance complaint arising from the construction of a French nuclear power station right on the applicant’s doorstep. The Court in Fadeyeva refers to it as a case where ‘the internal legality was also taken into consideration’. However, it is not entirely clear whether, by that, the ECtHR was referring to S v France as a Hatton-type case (involving domestic legality rather than illegality), or if it was intending to place it in precisely the same category as López Ostra and Guerra (with domestic illegality involved). One might be tempted to support the former view by reference to the Commission’s statement that it was ‘not in dispute that the nuclear power station was lawfully built and brought into service’. In addition, the applicant in S v France lost her case before the Commission, just as the applicants in Hatton had lost theirs before the ECtHR. However, the better view, it is submitted, is that S v France did involve domestic illegality because there had been a domestic court ruling awarding damages for noise nuisance to the applicant. Admittedly this was a breach of civil law obligations (of a nuisance type) rather than a breach of regulatory-type criminal or administrative standards: nevertheless, it was domestic illegality.

Another case, which is squarely of the Hatton legality type, that the Court in Fadeyeva might also have mentioned is Ashworth.^{Footnote 65} This involved noise nuisance from an aerodrome, which the applicants contended breached their rights under Article 8. The Court rejected the applicants’ case, ruling that it had not been shown that the Government had exceeded its margin of appreciation or failed to take appropriate measures to achieve an appropriate balance between the interests of the individual residents and the wider community interest (leisure and economic) in the operation of the aerodrome. One of the factors considered in reaching this conclusion was the absence of a domestic irregularity:

Had it wanted to identify other cases more positive for individuals like López Ostra or Guerra, involving the presence rather than the absence of domestic irregularities, then the Court in Fadeyeva might have cited its previous decisions in Moreno Gómez v Spain ^{Footnote 67} and Öneryildiz.^{Footnote 68}Gómez was a noise nuisance case where the fact that the noise from nightclubs was ‘beyond the permitted levels’ under the relevant domestic Spanish law seems to have influenced the Court’s finding of a breach of Article 8 on the part of the state.^{Footnote 69} The Valencian authorities had passed relevant laws to control the noise but had failed to enforce them, leading to a breach of its positive obligations to the applicant to safeguard her home and private life.^{Footnote 70} Similarly, in Öneryildiz, the landfill gas explosion case mentioned earlier, in finding a breach of the right to life in Article 2, the Court drew attention to the breach of domestic technical standards on waste management.^{Footnote 71}

Domestic court rulings

Most instances of rulings by domestic courts that one finds in the Convention jurisprudence will involve those that find against the individual applicant’s interests, which explains in part why the individual has ended up bringing proceedings in Strasbourg in the first place.^{Footnote 98} And the existence of a domestic court ruling can of course have legal relevance under the Convention. Thus, for example, in assessing state action under one of the limitation clauses found in Articles 8–11, it must typically be established that it was ‘in accordance with’ or ‘prescribed by’ the law (as well as being necessary in a democratic society). And the Demir case, for example, illustrates that domestic court rulings can satisfy the ‘prescribed by law’ element (in other words, the law need not be legislative in nature).^{Footnote 99}

However, in this section, the analysis will largely be of rulings by domestic courts which find in favour of the individual applicant. These, I suggest, represent an additional emerging pluralistic principle to domestic irregularity considered above, though the two will often be connected. There are two senses in which a connection might be said to exist. First, a court ruling might simply be the form in which a domestic irregularity – in other words a breach of domestic law – is formally declared to exist (though such a ruling is of course not necessary for such a finding, at least as regards breaches of regulatory legislative standards – a regulatory agency discovering, through monitoring, that there has been a breach would suffice there). Second, one might argue that if a breach of domestic standards has occurred, then the fact that a domestic court has also declared such a breach to exist might add (limited) extra weight to any ‘domestic irregularity’ case against the state.

While the focus of this article is the environmental case law of the ECtHR, it is worth pointing out that the Court has also drawn attention to domestic court rulings favourable to an applicant’s cause in other types of Article 8 cases. Thus, for example, in the 2011 A, B and C v Ireland case involving a challenge to Irish abortion laws, in finding a procedural breach of Article 8 in relation to one of the applicants, the ECtHR stated that:

In essence, abortion in Ireland was theoretically available to a woman under the Constitution on grounds of a risk to her life. However, lack of legislative implementation meant that women were unable to access an appropriate procedure for determining whether they met this ground.^{Footnote 101} The fact that the Irish courts, in the domestic X and C cases cited, had themselves condemned such a lack, seems to have had some bearing on the ECtHR’s ruling that the Irish authorities had thereby failed to fulfil their positive obligation to respect the applicant’s private life under Article 8.^{Footnote 102}

Returning to the environmental case law, S v France is potentially a problematic case because, as we saw earlier, it is difficult to be absolutely sure whether it is strictly a domestic irregularity case or not. If the Court in Fadeyeva meant to refer to the S case as a Hatton-type one involving domestic legality, then one might argue (somewhat implausibly) that a domestic court liability ruling can, where appropriate, effectively be legally sanctioned by the ECtHR via a retrospective style application of what appears something like an English common law tort, ‘statutory authority’ defence (the nuclear power station was lawfully built and brought into service) so as to end up with no relevant breach of Convention rights. If, on the other hand, the ECtHR meant to refer to it in precisely the same breath as López Ostra and Guerra (involving domestic illegality), then S v France seems like an example of the first type set out in the earlier paragraph above – in other words, one where the domestic court ruling simply evidences the domestic illegality. It is in some senses an unusual case because, unlike for example Taşkin and Okyay explored below, the applicant lost in Strasbourg because she had a domestic court ruling in her favour – the Court’s view being, in essence, that the domestic award of 250,000 francs was enough to compensate her for the nuisance she had suffered, which meant that there was no breach of Article 1 of Protocol 1 or Article 8. By contrast, in the latter cases as we shall see, the applicants won in Strasbourg, in part because they had domestic court rulings in their favour.

In Taşkin,^{Footnote 103} the applicants were complaining, inter alia, about cyanide risks from a local gold mine, claiming a breach of their rights under both Articles 6 and 8. The Turkish Government argued that Article 6 was not applicable because the alleged risk was hypothetical and ‘not at all imminent’, meaning that the complaints did not involve ‘civil rights and obligations’ as required under the article.^{Footnote 104} However, the Court ruled that the applicants’ right to protection of their physical integrity was directly at stake because the Turkish Supreme Administrative Court had itself held that there was a risk from the mine.^{Footnote 105} Furthermore, the applicants had brought proceedings in the Turkish administrative courts, the outcome of which did directly relate to their civil rights.^{Footnote 106} Having found that Article 6 was applicable, by reference to domestic court rulings in their favour, the ECtHR subsequently went on to find that Article 6 had been breached because the Turkish government had effectively made an order which attempted to bypass the judgment of the Turkish courts.^{Footnote 107} In other words, the presence of favourable domestic court rulings that had been ignored was germane here to the finding of a breach.

In relation to Article 8, the ECtHR, following Hatton,^{Footnote 108} drew a distinction (discussed earlier in the article in the section on the MoA) between the substantive and procedural aspects of the article, with the first involving consideration of the substantive merits and the second, scrutiny by the Court of the state’s decision-making process to ensure due regard had been taken of the applicant’s interests.^{Footnote 109} Beginning with the substantive aspect, the Court commented on the need to allow states a wide margin of appreciation in environmental cases. However, it then noted that the authorities’ decision to grant a licence for the gold mine was annulled by the Turkish Supreme Administrative Court after it had weighed the applicants’ rights against the public interest and come down in favour of the former.^{Footnote 110} The ECtHR crucially went on to state that, ‘[i]n view of that conclusion, no other examination of the material aspect of the case with regard to the margin of appreciation generally allowed to the national authorities in this area is necessary’. Thus, much like the domestic irregularity case, Fadeyeva, considered in the previous section, the Court here gives with one hand (observing the margin of appreciation theoretically available) but then takes away with the other (finding no scope for applying it, given the domestic court’s rights-balancing ruling in favour of the applicants).

In finding that Turkey was similarly in breach of the procedural aspect of Article 8, the ECtHR drew attention to the fact that the Turkish government had, contrary to the rule of law, effectively authorized the bypassing of Turkish court judgments in favour of the applicants. As the Court observed, by doing this, the Turkish authorities had deprived the procedural safeguards available to the applicants during the judicial phase of the proceedings, of any useful effect.^{Footnote 111} The outcome was therefore effectively the same for Article 8 and Article 6, with the Turkish executive’s overriding of domestic court judgments giving rise to a breach of both articles.

Okyay ^{Footnote 112} involved three (lawyer) applicants who were resident around 250 kilometres from three coal-fired power stations which lacked the required licence and were causing significant air pollution. As in Taşkin, the Turkish executive argued that the applicants had not demonstrated that the plants exposed them to a serious, specific and imminent danger for the purposes of Article 6.^{Footnote 113} However, the ECtHR similarly pointed to the findings of the relevant Turkish administrative court, which had found that there was a risk to public health, including the applicants, because the hazardous gas emitted by the plant could extend over an area which included their town.^{Footnote 114} The applicants’ right to the protection of their physical integrity was therefore involved.^{Footnote 115} The Court then proceeded to find that Article 6 was applicable and had been breached, for much the same reasons as the earlier Taşkin judgment, related to the domestic court rulings.^{Footnote 116}

More recently, there has been a number of cases in which the ECtHR has drawn attention to, inter alia, the existence of a domestic court ruling in favour of the applicants, in reaching its conclusion that the required minimum level of severity under Article 8 had been met. Thus, in Dubetska, the fact that domestic court rulings had confirmed the need for action to be taken against the relevant pollution including, for example, housing resettlement of the applicants, was a factor which led the Court to regard the pollution as being of a sufficient level of severity to engage Article 8.^{Footnote 117} The fact that the domestic resettlement judgments had remained unenforced was also a factor which the court considered in eventually finding that Article 8 had been breached.^{Footnote 118}

Similarly, in Apanasewicz, the Court distinguished the case from previous Article 8 decisions such as Furlepa ^{Footnote 119}and Borysiewicz ^{Footnote 120} in which the minimum level of severity was not made out, in part on the basis that here, the domestic civil court had ordered operations at the plant to cease because they went beyond the extent of normal neighbourhood nuisance.^{Footnote 121}

However, just as the Court is willing to draw attention to the presence of a favourable domestic court ruling in finding the engagement or breach of Article 6 or 8, so too might it draw attention to the absence of one in finding the lack of engagement or breach. Hence, in Ivan Atanasov,^{Footnote 122} in holding that there had been no breach of Article 6, the ECtHR, inter alia, specifically noted that there had been no equivalent ruling on risks by the relevant domestic Supreme Administrative Court to those found in Taşkın and Okyay.^{Footnote 123}

Alternatively, but also negative from the applicant’s point of view, the ECtHR may advert to the presence of an unfavourable domestic court ruling. Thus, in Morcuenda,^{Footnote 124} which involved radiation and vibrations from an electrical transformer, the Court held that although the applicant’s living conditions were disturbed, the nuisance was not at a sufficient level of severity to amount to a violation of Article 8. There was no separate, explicit reference to domestic standards. However, the ECtHR did advert to the presence of unfavourable domestic court rulings:

Nevertheless, it should be noted that the absence of domestic court rulings will not automatically go against an applicant. In Tătar v Romania,^{Footnote 126} for example, despite the absence of, inter alia,^{Footnote 127} domestic court rulings finding the activities dangerous, the ECtHR was prepared to concede that pollution from the gold plant could potentially affect the applicants so as to engage Article 8.^{Footnote 128}

Finally, how then does one reconcile, on the one hand, cases such as Taşkin and Okyay, where domestic court rulings in the applicants’ favour seem to point presumptively towards the individual and against the state and, on the other, S v France, where a similarly favourable domestic court judgment pointed against the individual’s Convention rights claim? The answer is that the domestic judgment in favour of the applicant in S v France was properly enforced and compensation (of a reasonable amount) had already been paid out. In contrast, the Turkish domestic court judgments in both Taşkin and Okyay had not been enforced, having been thwarted by executive pressure. In the end then, one can perhaps say that a domestic court ruling in favour of an applicant which has not been enforced, will lead the ECtHR to adopt a presumptive view in favour of the individual under both Articles 6 and 8.^{Footnote 129}

Global legal pluralism in action?

In considering whether domestic irregularity and the often connected issue of favourable domestic court rulings can be considered as examples of global legal pluralism in action, it needs to be pointed out that they cannot be regarded as wholly independent principles or tests. As the Court has stated of domestic legality in Fadeyeva, for example, it is not a separate and conclusive test but is, rather, one of a number of aspects to be taken into account in assessing the balance struck between the interests of the individual and the broader community.^{Footnote 130}

With that caveat in mind, one can, however, legitimately argue that domestic irregularity and domestic court rulings do appear to play a similar role to that played by the MoA doctrine, with which they are also intimately connected. While the margin of appreciation serves as a pluralistic device which typically allows the ECtHR to defer to states in sensitive or difficult policy areas, domestic irregularity and domestic court rulings prove equally useful devices which typically support the Court intervening against states and in favour of the individual rights-holder.

However, the ‘typically’ above is important in both cases. As discussed towards the start of this article, in common with many global legal pluralist instruments, they in fact have the potential to point both ways. Thus, one can have a narrow MoA as well as a broad one (though admittedly in the environmental sphere, it is almost invariably broad). Similarly, with domestic irregularity, there are occasions when the issue of domestic legality is raised by the Court and it works against the individual (e.g. Hatton). And again, with domestic court rulings, there may be occasions (e.g. Ivan Atanasov) when the absence of a domestic court ruling will work against an applicant’s interests. This Janus-faced quality is precisely what, in global legal pluralist terms, makes them such useful devices to be employed in reaching accommodation between competing legal orders: they can be applied sensitively by the Court in whichever direction is relevant to the particular facts of the case.

If one considers the pluralistic devices here in terms of judicial review by one system of another, then their dual-facing nature becomes more understandable. In the end, the MoA is perhaps better seen as a doctrine which is equivalent to the idea of intensity of review. Where individual rights are particularly sensitive and important, then one would expect a high intensity of review by the ECtHR or, in other words, a low MoA. Where, in contrast, the rights are of a lesser nature or the counter-weighing democratic public interest greater, then low-intensity review, or a high MoA, becomes more appropriate.

With domestic irregularity and domestic court rulings, the judicial review analogy here is more like simple ‘illegality’ as a ground of review. In essence, the ECtHR is policing not so much democratic discretion (which is more apt for the MoA), but rather the legality of action taken by contracting states, with that legality measured against their own domestic legislative choices. Where there has been illegality, the ECtHR typically intervenes; where there has been no domestic illegality or court ruling, the European Court is more likely to steer clear.

In addition, in common with many judicial review jurisdictions, the ECtHR is not, for the most part, a primary fact-finding tribunal. Although it does have some primary fact-finding powers, it tends to rely on secondary sources^{Footnote 131} such as, here, findings by national authorities of pollution levels having been breached. Finally, in relation to questions of law, the Court has consistently held that the interpretation and application of domestic law (including findings of its breach therefore), are primarily matters for the national authorities (and in particular the courts).^{Footnote 132} Again, this area of legal ‘jurisdiction’ (whether, for example, a reviewing court should substitute or respect the original court or tribunal’s decisions on questions of law) is a common feature of judicial review.^{Footnote 133} Given that, in the present context, domestic court rulings are typically heavily fact-dependent, the ECtHR’s approach to questions of domestic law very much ties in with its approach to fact finding: to take a more aggressive approach to querying domestic law would lead it to having to undertake more of a primary fact-finding role.