2.1 The Paris Agreement's bottom-up approach and judicial restraint in domestic climate change litigation: a brief overview

A brief overview of a selection of domestic climate change cases serves to illustrate how the bottom-up approach of the Paris Agreement and judicial reluctance to intervene in the area of policymaking have combined to undermine the efficacy of climate change litigation. Starting with the UK, the High Court of England and Wales dismissed a challenge brought to the refusal by the UK government to revise the 2050 carbon target provided for under the UK's Climate Change Act 2008.²³ The applicants argued that this refusal frustrated the purpose of the Act because the existing target was not sufficient to meet the ambition of the Paris Agreement to which it was intended to give effect. The court held, however, that this argument ‘rest[ed] on an incorrect interpretation of the terms and implications of the Paris Agreement’,²⁴ having noted previously that the Agreement ‘does not impose a binding legal target on each specific contracting party to achieve any specified temperature level by 2050’.²⁵ The court also dismissed a separate argument that the refusal to amend the target in question amounted to a breach of the State's positive obligation under Articles 2 (right to life) and 8 (right to respect for private and family life and one's home) of the ECHR to prevent harm to the applicants from climate change, noting that ‘this is an area where the executive has a wide discretion to assess the advantages and disadvantages of any particular course of action’.²⁶ In Ireland, an almost identical approach to the same ECHR Articles was adopted by the High Court of Ireland in a case involving a challenge to the Irish Government's climate change mitigation policies.²⁷

More recently, a challenge to German mitigation efforts was rejected on similar grounds by the Administrative Court of Berlin.²⁸ The court held that while climate policy must be consistent with the obligation to protect fundamental rights under the German Constitution, the government enjoys broad discretion in this area such that the measures in question would need to be proven to be wholly inadequate to be found to be unconstitutional.²⁹ It concluded that this was not the case in part by reference to the fact that Germany's emissions reduction target was more ambitious than both the target adopted by the European Union (EU) and that endorsed in the Urgenda case, discussed below.³⁰ While it acknowledged the appeal of distributing the remaining global carbon budget on a per capita basis, as contended by the applicants, it noted that the question of the equitable distribution of the global carbon budget involved ethical considerations the subject of ongoing political negotiation.³¹ It therefore declined to adopt this understanding of equity as a mandatory legal minimum under German law. Regarding Germany's positive obligation under Article 2 of the ECHR, the court held that the impugned policies were compatible with the Convention, referring to the wide ‘margin of appreciation’ enjoyed by States under the Convention and, further, that such obligations must not impose an impossible or disproportionate burden on the State.³²

A further illustration is provided by the decision of the Norwegian Court of Appeal concerning a challenge to the issuing of licences for the extraction of significant quantities of oil and gas in the Barents Sea.³³ There it was alleged that the decision to issue these licences was incompatible with both the right to a healthy environment under the Norwegian Constitution and the State's obligations under Articles 2 and 8 of the ECHR. The court held that the discretionary margin enjoyed by the government was the same under both the Norwegian Constitution and the ECHR.³⁴ In determining the scope of that margin, it noted that combined current NDCs are inconsistent with the goal of the Paris Agreement and that the ‘burden-sharing principles in the Agreement are suited to strengthening Norway's responsibility’.³⁵ The court noted, however, that even a global emissions reduction in line with the 1.5°C target provided ‘room’ for some emissions.³⁶ It went on to conclude that the socio-economic and political considerations associated with the licensing of oil and gas extraction required the courts to exercise restraint in this area and held that the government had not exceeded its discretion.³⁷

A final example of note is the decision of the High Court of New Zealand,³⁸ which though evidently not concerned with the ECHR, provides perhaps the strongest example of a domestic court relying on the Paris Agreement's bottom-up approach in dismissing a challenge to the adequacy of a country's mitigation target. Thus, the court noted that the Paris Agreement requires that States adopt mitigation efforts which reflect their ‘highest possible ambition’ and that developed countries take the lead in this area but that it ultimately ‘leaves these matters to be nationally determined’.³⁹ There was, furthermore, according to the court, ‘no requirement for countries to adopt a target that if adopted by all would achieve warming well below 2°C, nor to alter its NDC because the combined [NDCs] were insufficient to meet the target’.⁴⁰ Mirroring the approach of the Berlin Administrative Court, the court further held that ‘[o]ther countries' targets were relevant to test the fairness and ambition of our target’ and that ‘[t]he evidence shows that our target is fair when considered on this [comparative] basis’.⁴¹

2.2 The Urgenda decision

As with each of the cases bar the case from New Zealand referred to above, the Urgenda case involved a challenge to the adequacy of the Netherlands' mitigation efforts in part on grounds that they were incompatible with its positive obligations under Articles 2 and 8 of the ECHR.⁴² The court held that these obligations required the Netherlands to adopt mitigation efforts to protect Dutch residents from harm caused by climate change.⁴³ It also noted with regard to the positive obligations arising under the ECHR that while ‘states do have discretion in choosing the steps to be taken … these must actually be reasonable and suitable’.⁴⁴ However, as held by the Berlin Administrative Court, it held that the obligations in question could not be interpreted as imposing an ‘impossible or disproportionate burden’ on the State.⁴⁵ Regarding the fact that Dutch emissions make a relatively minor contribution to global emissions, the court referred to Article 47 of the International Law Commission's (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)⁴⁶ concerning the responsibility of a plurality of States for the same internationally wrongful act (discussed below) to support its view that States are both jointly responsible and ‘partially responsible on an individual basis’ for climate change and its consequences.⁴⁷ The fact that ‘[m]any countries have corresponding rules in their liability law system’ further supported this conclusion.⁴⁸

As regards the Netherlands' fair share of global emissions reductions, this was ‘in principle, a matter for the government and parliament’.⁴⁹ However, ‘the courts can assess whether the measures taken by the State are too little in view of what is clearly the lower limit of its share’.⁵⁰ Central to this assessment were the ‘clear views, agreements and/or consensus in an international context about the distribution of measures among countries’.⁵¹ This in turn stemmed from the principle that the ECHR must be interpreted in light of the norms of both domestic and international law on which there is ‘common ground’ among the majority of the Council of Europe Member States.⁵² The court held, however, that ‘[i]n determining the State's minimum obligations, the courts must observe restraint’ such that it is ‘only in clear-cut cases that the courts can rule … that the State has a legal obligation to take measures’.⁵³

The court then turned to the range of reductions (25 per cent to 40 per cent on 1990 levels by 2020) which the applicants had argued provided a measure for the minimum mitigation effort permitted by Dutch law. It observed that the parties to the Kyoto Protocol to the UN Framework Convention on Climate Change,⁵⁴ which included the Netherlands, had agreed on several occasions that the countries listed in Annex I to that Convention (broadly corresponding with developed countries) ought to reduce their emissions according to this range in order to prevent climate change from exceeding 2°C.⁵⁵ This, among other factors, demonstrated ‘a high degree of international consensus on the urgent need for the Annex I countries to reduce greenhouse emissions by at least 25–40 per cent by 2020 compared to 1990 levels’ which could be ‘regarded as common ground’ for the purpose of the relevant ECHR jurisprudence.⁵⁶ A reduction of 25 per cent on 1990 levels by 2020 (an increase of 5 percentage points relative to the government's target for that year) could ‘therefore be regarded as an absolute minimum’ for the purpose of the State's obligations under Articles 2 and 8.⁵⁷

The decision in Urgenda has rightly been celebrated as setting a major precedent with global significance.⁵⁸ According to Patrícia Ferreira, referring to the first instance decision which was upheld by the Supreme Court, it proves that, ‘despite the vague nature of the concept “to take the lead” in the climate regime, this core aspect of differentiation [between developed and developing countries] may have sufficient persuasive force to be used as a complementary tool in the interpretation of national obligations’.⁵⁹ It is, at the same time, important to highlight that if every country were to reduce their emissions by the lowest amounts in the range considered in Urgenda, this would be insufficient to achieve the global temperature target to which that range is linked. As Yann Robiou du Pont and Malte Meinshausen have stated in relation to this decision, ‘systematic court decisions that governments must follow the least-ambitious end of an equity range would be insufficient to achieve the [goal of the] Paris Agreement’.⁶⁰ This weakness is compounded by the fact that developing countries already viewed the equity range considered in Urgenda with ‘scepticism and outright hostility’.⁶¹ This means, of course, that if domestic courts in developing countries were to follow the approach adopted in Urgenda, they could not even require their governments to reduce their emissions by the lower end of this range.

2.3 The need for a solution to the fair share question in climate change litigation

It is clear from the above overview of domestic climate change cases that the manner in which domestic courts have engaged with the fair share question has undermined the ability of domestic litigation to produce results which are collectively consistent with the 1.5°C target. It is also clear that domestic courts' understanding of the applicable international obligations relating to climate change mitigation has had a significant bearing on the outcome of these cases.⁶² This is true, in particular, in relation to how domestic courts in European countries have interpreted the relevant obligations under the ECHR. Against this background, the analysis now turns to outline how, notwithstanding the absence of an agreed approach to sharing the global burden of mitigating climate change, States' IHRL obligations to prevent harm from climate change ought to be interpreted in a way that requires mitigation efforts which are collectively capable of achieving the 1.5°C target; particular focus will be placed on the obligations under the ECHR.⁶³ While an overview of the relevant ECtHR jurisprudence will be provided later in the analysis, it is important to note the following at this juncture: Firstly, the principles of proportionality (in the sense that a State must not be subject to an ‘impossible or disproportionate burden’)⁶⁴ and reasonableness which underpin the ECtHR's jurisprudence on positive obligations are, in relation to the obligation to prevent harm from climate change, capable of being informed by the (ill-defined) burden-sharing principles in the Paris Agreement.⁶⁵ At the same time, as will be further discussed below, according to the principle of consensus referred to in Urgenda, the ECtHR could not determine the ‘correct’ approach to global burden-sharing in the absence of consensus on this issue. The remainder of this paper is therefore concerned with how, in these circumstances, the IHRL-based obligations to prevent harm from climate change can and should be approached in a way that minimises the risk of the type of collective outcome to which the domestic decisions considered above are inclined to contribute. The analysis commences with consideration of the recently completed Guiding Principles on Shared Responsibility.

3.1 Contributions to climate change as a single composite act?

Clearly, the authors of the Guiding Principles on Shared Responsibility take the view that an IHRL obligation to prevent harm from climate change could not be breached by multiple States in such a way as to give rise to a single composite wrongful act. It is, nevertheless, worth comparing this obligation with the example of genocide provided in the commentary. To do so, we must first consider whether a breach of an IHRL obligation can fall within Article 15 of the ARSIWA. The ILC's commentary thereon states that ‘[c]omposite acts covered by article 15 are limited to breaches of obligations which concern some aggregate of conduct and not individual acts as such’.⁷⁹ It further states that ‘[i]t is necessary to distinguish composite obligations from simple obligations breached by a “composite” act’.⁸⁰ In the case of the former, ‘the obligation itself is defined in terms of the cumulative character of the conduct, i.e. where the cumulative conduct constitutes the essence of the wrongful act’.⁸¹ While IHRL obligations are not expressly defined as either composite or simple obligations, it would seem they are capable of functioning as either type of obligation. Indeed, the ECtHR has referred to Article 15 in several of its judgments.⁸² Given the cumulative manner in which contributions to climate change are made, and the way in which those contributions progressively intensify climate change and the harm it causes, an IHRL obligation to prevent harm caused by climate change will inevitably be concerned with ‘a series of actions or omissions’ extending over a significant period of time.⁸³

Therefore it seems that, according to Gattini, a single wrongful composite act of genocide can be composed of the conduct of more than one State on the basis either that: (a) the conduct of each State constitutes a wrongful act short of genocide; or (b) the conduct of each State satisfies the mental element of the crime but falls short of the threshold level of deaths etc needed to establish the actus reus and, further, that that threshold level is only met when those deaths are aggregated together.⁸⁵ In the case of ‘interpretation (a)’, the ILC's commentary to Article 15 refers to the ‘possibility that every single act in the series could be wrongful in accordance with another obligation’ but makes no suggestion that this is necessary to engage that Article.⁸⁶ That leaves the IHRL obligation to prevent harm from climate change to be compared with ‘interpretation (b)’ and here there is a significant similarity between the example of genocide and the situation of climate change. In the genocide example, each State has not, by itself, met the threshold for the actus reus to render it independently liable. In the case of climate change, owing to the ambiguity around a State's fair share, there is an uncertainty as to whether an individual State has met the requisite threshold to render it independently liable for breaching its IHRL obligation to prevent harm from climate change. Furthermore, in light of that obligation, it can hardly be said that the contribution by a State to global emissions is ‘per se perfectly lawful’ or inherently lawful conduct.

He further held that ‘[i]t is the creation of dangerous conditions for shipping and doing commerce in the Gulf which constitutes the internationally wrongful act within the meaning of Article 47’ which entitled the US to ‘invoke the responsibility of either State, that is, also of Iran, individually’.⁹³

There is a clear difficulty with the suggestion that the responsibility of Iraq, despite it not being a party to the treaty in question, could be invoked pursuant to Article 47. Putting this issue aside, however, Judge Simma's analysis is noteworthy because it is based on the view that a single wrongful act can be composed of conduct attributable to more than one State. According to Margaretha Wewerinke-Singh, ‘[a]lthough Simma did not say so, it is clear from his opinion that he considered that th[e] treaty provision [in question] could be breached through a pattern of conduct (ie what Article 15 of the [ARSIWA] calls a “composite act”)’.⁹⁴ She goes on to conclude that Judge Simma was implicitly applying Article 15 only to the actions of Iran,⁹⁵ however this view is not compatible with the manner in which he applied Article 47. Rather, it is clear from the passage quoted above that he (implicitly) considered the conduct of both Iran and Iraq to give rise to a single composite act. He used this concept to circumvent the difficulty created by the uncertainty surrounding whether specific actions which combined to create the hostile environment in the Gulf were attributable to either State. As further discussed in Section 4 below, there is a clear comparison to be drawn between the uncertainty with which Judge Simma was concerned and the uncertainty created by the fair share question in the context of climate change – both stem from the involvement of more than one State in contributing to a particular outcome. The application of Judge Simma's approach to the situation of climate change would involve addressing the uncertainty created by the fair share question by aggregating States' respective contributions to global emissions into one single act.

In the final analysis, however, it is important to emphasise that whether or not a plurality of States can be responsible for the same internationally wrongful act ‘will depend on the particular primary obligation’ in question.⁹⁶ The view of the authors of the Guiding Principles on Shared Responsibility that the IHRL obligation to prevent harm from climate change cannot be breached by a plurality of States in such a way as to give rise to a single composite wrongful act is evidently based on the view that, owing to their nature, IHRL obligations are not capable of being breached in this way. This is undoubtedly a fair conclusion: the principles of reasonableness and proportionality that are central to the definition of States' positive obligations under IHRL are not easily reconcilable with the aggregation of State conduct into one single composite act. It remains the case, however, that there is a significant similarity between, on the one hand, both the ‘threshold issue’ that arises in the genocide example and the uncertainty that arose in Oil Platforms (both stemming from the involvement of more than one State) and, on the other hand, the fair share question which arises in the context of climate change. The fact that a solution could be found to the former issues via the concept of a composite act highlights the need for a solution with similar effect to the fair share question. The analysis which follows sets out how the fair share question ought to be addressed in the context of the IHRL obligation to prevent harm from climate change, in accordance with Principle 4 of the Guiding Principles on Shared Responsibility.

4.1 Applying the relevant principles of domestic tort law to the fair share question

Why ought the principles applicable in cases involving causal uncertainty and multiple wrongdoers apply in relation to the fair share question? The first reason is that there exists a fundamental similarity between what is at issue in both types of situation. As in cases involving causal uncertainty and multiple wrongdoers, the fair share question concerns ambiguity as to the extent, if any, of the unlawful contribution to a harm caused by multiple potential wrongdoers. If any, because if a State's contribution to global emissions falls within its (undefined) fair share, then its contribution is not unlawful. In addition, in both situations the ambiguity results solely from the fact that there are multiple potential contributors. A further justification stems from the fact that the ambiguity surrounding the nature of a State's fair share is a direct consequence of the failure by States to agree on a globally applicable approach to sharing the burden of mitigating climate change. Here it is worth noting the policy argument which lies behind the principles applicable in cases involving causal uncertainty and multiple wrongdoers, as made clear in the leading English authority in this area, Fairchild v Glenhaven Funeral Services.¹¹³ In that case, the plaintiffs could not establish which of several periods of exposure to asbestos by their multiple negligent employers had caused their resulting injuries. The House of Lords concluded that it was sufficient in such cases for a plaintiff to establish that the defendants had merely materially increased the risk of the harm in question occurring.¹¹⁴ In support of this conclusion, Lord Bingham held that there was ‘a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so’.¹¹⁵ Thus, the potential injustice entailed by relaxing the approach on causation in such a case, ie of imposing liability on a negligent defendant who had not caused the harm in question, was ‘heavily outweighed by the injustice of denying redress to a victim’.¹¹⁶ By the same token, it is on balance surely more appropriate that States, and not the victims of the harm which they collectively cause, should bear the consequences of their failure to agree on an approach to distributing amongst themselves the global burden of mitigating climate change.

How, then, do the above principles apply to the fair share question when it comes to establishing a breach of the IHRL obligation to prevent harm from climate change? On the basis of the current trajectory of climate change, the application of these principles to the fair share question requires that all States' mitigation efforts be presumed, as a starting point, to entail ongoing emissions which exceed their respective ‘fair shares’ – the greater the extent to which climate change is on course to exceed the 1.5°C target, the stronger this presumption. This means that the onus must fall on the State to justify the adequacy of its mitigation efforts, with the default position being that its mitigation efforts are not ‘reasonable’. Furthermore, given the fact that climate change is currently on course to vastly exceed the 1.5°C target, any doubt as to the adequacy of a State's mitigation efforts must result in that default position being maintained. In this regard, it follows from the principles applicable in cases involving causal uncertainty and multiple wrongdoers that ambiguities in the relevant Paris Agreement burden-sharing principles (ie those of ‘common but differentiated responsibilities and respective capabilities, in the light of different national circumstances’ and the related principle of equity) must be resolved in favour of a victim of climate change. This is because, when it comes to ambiguity as to the meaning of a principle, the equivalent of a presumption of fact in favour of a particular party (as applies in cases of causal uncertainty and multiple wrongdoers) is a rule which requires that ambiguity be resolved in this manner.¹¹⁷ In practice, this justifies greater emphasis being placed, when assessing a State's justification for the reasonableness of its mitigation efforts, on less favourable (from the perspective of the State) approaches to measuring that State's fair share. This means that greater weight must be put on measures of a State's fair share relating to, for example, its capacity to reduce emissions where that State has a greater capacity to do so. Importantly, the expectation in the Paris Agreement that developed countries take the lead in the area of mitigation justifies the application of this approach with greater force to such countries.

A key feature of this approach is that it does not require the identification of the ‘right’ measure for global burden-sharing. Nor does it involve the possibility of establishing breach simply because a State makes (or has made) any contribution to global emissions; in Judge Simma's language, States still have a ‘way out’. But, crucially, this approach significantly limits the risk of States being able to ‘extricate’ themselves from the presumptive responsibility which they entail on the basis of mitigation efforts which are collectively incapable of keeping climate change to the 1.5°C target. In this way, this approach is consistent with, and provides a normative basis for relying on, the approach taken by the Climate Action Tracker (CAT) (‘an independent scientific analysis that tracks government climate action and measures it against the globally agreed Paris Agreement’)¹¹⁸ to assessing the fairness of a State's mitigation efforts. The CAT's approach is to construct a ‘fair share range’ from the wide range of approaches to measuring the fairness of a particular State's mitigation efforts.¹¹⁹ That range is then divided into three sections: ‘insufficient’, ‘1.5°C compatible’ and ‘2°C compatible’. Each section corresponds to the temperature outcome that would result if all other countries were to adopt mitigation efforts of equivalent ambition relative to their respective fair share ranges. This means that only where a State's mitigation efforts are compatible with the relatively more demanding measures of fairness within its fair share range will those efforts be rated as compatible with the 1.5°C target. Notably, none of the Member States of the Council of Europe (the Member States of the EU are rated collectively) achieve a CAT rating greater than ‘insufficient’.¹²⁰

4.2 The proposed approach to the fair share question and the ECHR

A State cannot, however, dilute its obligations under the Convention by binding itself to another international agreement.¹²⁶ Finally, as with international agreements, general principles of law for the purpose of Article 38(1) of the Statute of the ICJ¹²⁷ and similarly, the ‘norms and principles applied … in the domestic law of the majority of member States of the Council of Europe’¹²⁸ may also inform the interpretation of the Convention.

Applying these principles, the Paris Agreement, for a start, provides clear expression of a consensus as to the need to keep global warming to the 1.5°C target in order to prevent ‘significant deleterious effects … on human health and welfare’.¹²⁹ At the same time, as previously noted, the absence of consensus as to the appropriate approach to burden-sharing would preclude the ECtHR from endorsing any one such approach as the ‘proper’ approach. According to the above principles, however, the fact that States have not bound themselves to specific reduction targets (derived from a particular approach to burden-sharing) which are collectively capable of achieving the 1.5°C target ought not to preclude an interpretation of States' ECHR obligations in a way that is consistent with the realisation of this target. To allow States the latitude which the Paris Agreement affords when determining their fair share of the required global mitigation effort to colour the understanding of these particular obligations would involve diluting the free-standing ECHR obligation to prevent harm from climate change by absorbing into the Convention the weaknesses of the Paris Agreement's bottom-up approach. It would equally render the right to live in an environment where climate change has not exceeded the 1.5°C target ‘theoretical and illusory’. Instead, a harmonious interpretation of the Paris Agreement and these ECHR obligations, which is consistent with the latter's object of protecting individual human beings, must be found. The proposed approach allows for such a harmonious interpretation. Indeed, it is entirely consistent with the Paris Agreement's ultimate objective of preventing global warming from exceeding the 1.5°C target. Furthermore, insofar as it draws on general principles of domestic law, the role of such principles in the interpretation of the Convention provides an additional basis for its application to the ECHR obligation to mitigate climate change.

In Rantsev v Cyprus and Russia,¹³² which concerned the responsibility of the respondent States for the trafficking and consequent death of the applicant's daughter, the ECtHR held that States had a ‘duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories’.¹³³ Ilaşcu and Others v Moldova and Russia¹³⁴ concerned the responsibility of both of the respondent States in that case arising from the sentencing to death of the applicants by the Russian-supported Moldavian Republic of Transdniestria (MRT), a secessionist regime in control of the Moldovan territory of Transdniestria. The ECtHR held that a State which is faced with the establishment of a separatist regime on its territory ‘must endeavour, with all the legal and diplomatic means available to it vis-à-vis foreign States and international organisations, to continue to guarantee the enjoyment of the rights and freedoms defined in the Convention’.¹³⁵ On this basis it found that Moldova had failed to fulfil its obligations to the applicants on account of the manner in which it had engaged in negotiations with both the MRT and Russia.¹³⁶ Russia was held responsible for supporting the MRT.¹³⁷ Both cases illustrate how the Court tailors the individual obligations of States in cases involving multiple contributions to a single harm to ensure that these obligations are mutually consistent with ensuring the prevention of that harm. This provides further support for the application of the proposed approach to the ECHR obligation to mitigate climate change insofar as it ensures that the mitigation efforts of States Parties to the Convention are collectively capable of contributing to the achievement of the 1.5°C target.

Rantsev and Ilaşcu also support the view that the emphasis placed in a number of the European domestic cases discussed in Section 2 on the discretion or ‘margin of appreciation’ enjoyed by governments under the ECHR when adopting mitigation measures is misguided. It is widely agreed that the margin of appreciation enjoyed by States stems primarily from the principle of subsidiarity.¹³⁸ The latter principle in turn finds expression in the ECtHR's understanding that ‘by reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on’ certain matters relating to the interpretation and implementation of the Convention.¹³⁹ It should follow therefore that a much narrower margin of appreciation ought to apply in situations where the protection of human rights depends on the actions of multiple States operating effectively in relation to each other. In such cases, the ECtHR, from its vantage point as an international court, is arguably best placed to determine the scope of States' obligations. This is borne out by the decisions in both Rantsev and Ilaşcu where the Court made no reference to the margin of appreciation despite addressing matters in respect of which governments would typically enjoy broad discretion, particularly in relation to the conduct of negotiations with a foreign State, as in Ilaşcu. It is also important to emphasise in this context that ‘[t]he doctrine of the margin of appreciation has always been meant as a tool to define relations between the domestic authorities and the Court [and] cannot have the same application to the relations between the organs of the State at the domestic level’.¹⁴⁰ The emphasis in a number of the European domestic decisions considered in Section 2 on judicial restraint and related separation of powers considerations when applying the ECHR is therefore also misguided.