The Margin of Appreciation in International Human Rights Law: Deference and Proportionality

Hardcover | July 13, 2012

byAndrew Legg

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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 itundermine 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 catalogues 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 ofadjudication. 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-AmericanCourt 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-makingprocess, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.

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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 itundermine the universality of human rights? How sh...

Andrew Legg is a barrister practising from Essex Court Chambers in London. He has a broad commercial practice and a particular interest in public international law and human rights. Andrew holds a doctorate from the University of Oxford, where he taught law for four years and lectured on the European Human Rights Law course.
Format:HardcoverDimensions:276 pagesPublished:July 13, 2012Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199650454

ISBN - 13:9780199650453

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Table of Contents

1. IntroductionPart One - Theory: Conceptualizing And Justifying The Margin Of Appreciation2. Deference: Reasoning Differently On The Basis Of External Factors3. Different Approaches To Deference In International Human Rights LawPart Two - Practice: Factors Affecting The Margin Of Appreciation4. Democracy And Participation5. Treaty Interpretation, Current State Practice And Other International Law Influences On The Practice Of Deference6. Expertise And CompetencePart Three - The Structure Of Human Rights Adjudication: The Margin Of Appreciation And Proportionality7. Proportionality: Determining Rights8. Nature Of The Right And Type Of Case9. Concluding RemarksBibliography