The Margin Of Appreciation In International Human Rights Law
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Author | : Andrew Legg |
Publisher | : OUP Oxford |
Total Pages | : 272 |
Release | : 2012-07-05 |
Genre | : Law |
ISBN | : 0191632155 |
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Author | : Steven C. Greer |
Publisher | : Council of Europe |
Total Pages | : 60 |
Release | : 2000-01-01 |
Genre | : Political Science |
ISBN | : 9287143501 |
The term 'margin of appreciation' has been used for some time to refer to the room for manoeuvre that the Strasbourg institutions are prepared to accord national authorities in fulfilling some of their principal obligations under the European Convention for Human Rights. This document proposes how the meaning of the term may be given greater clarity, coherence and consistency.
Author | : Yutaka Arai-Takahashi |
Publisher | : Intersentia nv |
Total Pages | : 263 |
Release | : 2002 |
Genre | : Convention for the Protection of Human Rights and Fundamental Freedoms |
ISBN | : 9050951953 |
Author | : J. G. Merrills |
Publisher | : Manchester University Press |
Total Pages | : 354 |
Release | : 1993 |
Genre | : Law |
ISBN | : 9780719045608 |
Author | : Howard Charles Yourow |
Publisher | : BRILL |
Total Pages | : 241 |
Release | : 2021-09-27 |
Genre | : Law |
ISBN | : 9004482261 |
The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence is the first full-length monograph to treat this subject, which is of central importance to the interpretation and application of the European Convention on Human Rights. It will enrich the understanding and appreciation of judges, advocates, civil servants, scholars, researchers, students, and indeed of anyone whose life and work is affected by national and international human rights adjudication. This thorough and learned analysis synthesizes the work of the Strasbourg judicial organs, proceeding in the light of the ongoing debates on the appropriate place of the margin doctrine in the Strasbourg jurisprudence. The author's rich conclusions add texture and perspective to the future judicial and scholarly dialogues which will no doubt continue to surround this subject matter. The text is eminently readable, written in a clear and precise style to be appreciated by the novice and specialist alike. The newcomer to human rights and to the Convention will find it an inviting introduction to complex material; the expert will gain new and expanded insights into the development of the case law rarely to be found in this breadth and depth.
Author | : Lukasz Gruszczynski |
Publisher | : Oxford University Press, USA |
Total Pages | : 465 |
Release | : 2014 |
Genre | : Law |
ISBN | : 019871694X |
International courts use two key methodologies to determine the degree of deference granted to states in their implementation of international obligations: the standard of review and margin of appreciation. This book investigates how these doctrines are applied in international courts, analysing where their approaches converge and diverge.
Author | : Steven Greer |
Publisher | : Cambridge University Press |
Total Pages | : 562 |
Release | : 2018-03-29 |
Genre | : Law |
ISBN | : 1108647456 |
Confusion about the differences between the Council of Europe (the parent body of the European Court of Human Rights) and the European Union is commonplace amongst the general public. It even affects some lawyers, jurists, social scientists and students. This book will enable the reader to distinguish clearly between those human rights norms which originate in the Council of Europe and those which derive from the EU, vital for anyone interested in human rights in Europe and in the UK as it prepares to leave the EU. The main achievements of relevant institutions include securing minimum standards across the continent as they deal with increasing expansion, complexity, multidimensionality, and interpenetration of their human rights activities. The authors also identify the central challenges, particularly for the UK in the post-Brexit era, where the components of each system need to be carefully distinguished and disentangled.
Author | : Francisco Pascual-Vives |
Publisher | : BRILL |
Total Pages | : 308 |
Release | : 2019-07-22 |
Genre | : Law |
ISBN | : 9004375511 |
In Consensus-Based Interpretation of Regional Human Rights Treaties Francisco Pascual-Vives examines the central role played by the notion of consensus in the case law of the European and Inter-American Courts of Human Rights. As many other international courts and tribunals do, both regional human rights courts resort to this concept while undertaking an evolutive interpretation of the Rome Convention and the Pact of San José, respectively. The role exerted by the notion of consensus in this framework can be used not only to understand the evolving character of the rights and freedoms recognized by these international treaties, but also to reaffirm the international nature of these regional human rights courts.
Author | : Carla M. Buckley |
Publisher | : BRILL |
Total Pages | : 685 |
Release | : 2016-10-18 |
Genre | : Law |
ISBN | : 9004284257 |
We live in an era of proliferating international legal domains and institutions, not least in the human rights field. For some, normative pluralism within human rights is inevitable, and even desirable. Others view it as a threat to the integrity and coherence of international human rights protection. How far do human rights standards and their interpretation by different regional and international human rights systems diverge? To what extent do human rights bodies ‘borrow’ from or influence each other in respect of their case law, practices and procedures? Is global human rights protection fragmenting or heading towards greater coherence? This edited collection addresses these questions through the insights of leading scholars and jurists with first-hand experience of human rights adjudication and litigation.
Author | : Martin Belov |
Publisher | : Routledge |
Total Pages | : 189 |
Release | : 2019-10-16 |
Genre | : Law |
ISBN | : 1000707970 |
This book examines how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers. This volume critically assesses the phenomena of judicialization of politics and politicization of the judiciary. It explores the rising impact of courts on key constitutional principles, such as democracy and separation of powers, which is paralleled by increasing criticism of this influence from both liberal and illiberal perspectives. The book also addresses the challenges to rule of law as a principle, preconditioned on independent and powerful courts, which are triggered by both democratic backsliding and the mushrooming of populist constitutionalism and illiberal constitutional regimes. Presenting a wide range of case studies, the book will be a valuable resource for students and academics in constitutional law and political science seeking to understand the increasingly complex relationships between the judiciary, executive and legislature.