A critical Analysis of the Margin of Appreciation Doctrine of the ECtHR, in particular about rights to a traditional way of life and to a healty environment: A Call for an Alternative Model of International Supervision

This article sets out to critically analyse the margin of appreciation doctrine as developed and used by the European Court of Human Rights, covering both fundamental concerns about the problems with the way the Court applies the doctrine. Subsequently these concerns are traced and exposed in the Courts jurisprudence pertaining to environmental protection and the 'traditional way of life of minorities and indigenous peoples', both issues of special concern within polar law. The article then goes on to identify an alternative way for the Court to fulfill its role of international supervisor, implying a radical halt to using a margin of appreciation for states as the baseline and thus shifting the focus to the supervisory task of the European Court. The supervision by the Court would then have more body and would focus on identifying and balancing all relevant interests, thus taking into account 'all relevant circumstances', while being more explicit about the relative weight of these respective interests. This implies a reconsideration of the meaning and implications of the subsidiary nature of international protection. The conclusion is preceded 'by a paragraph investigating what this alternative model of supervision could potentially mean for the protection of indigenous peoples as interrelated with rights to a healthy environment.