The (Language of) the Margin of Appreciation: From Strasbourg to Aotearoa New Zealand

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.