The Evolution of the Margin of Appreciation Doctrine: A Case of Diplomacy in International Human Rights Adjudication?

Working paper


Ita, R. 2016. The Evolution of the Margin of Appreciation Doctrine: A Case of Diplomacy in International Human Rights Adjudication? College of Law Humanities and Social Sciences, University of Derby.
AuthorsIta, R.
TypeWorking paper
Abstract

International human rights courts are faced with the challenge of protecting human rights standards whilst still acknowledging the sovereignty of member states from which they derive their authority. An important tool that is needed in such situations is an approach to the interpretation of the international human rights treaties that contemporaneously protects the rights of individuals and respects the sovereignty of the state parties. In this paper, it is argued that this form of interpretation that tries to strike a balance between these two competing interests of sovereignty on the part of the state, and the protection of the individual’s rights, is a ‘diplomatic’ approach to interpretation because it seeks to ensure a balance for both parties. The paper examines the margin of appreciation doctrine of the European Court of Human Rights (‘the Court’) and proffers it as an example of such a ‘diplomatic tool’ of interpretation. Through an examination of case law on the evolution of the margin of appreciation in the jurisprudence of the Court, it concludes that the fluid nature of the doctrine has made it a useful diplomatic tool of interpretation. The margin of appreciation doctrine remains a necessary part of international human rights in Europe and contributes to the continued legitimacy of the Court.

International human rights courts are faced with the challenge of protecting human rights standards whilst still acknowledging the sovereignty of member states from which they derive their authority. An important tool that is needed in such situations is an approach to the interpretation of the international human rights treaties that contemporaneously protects the rights of individuals and respects the sovereignty of the state parties. In this paper, it is argued that this form of interpretation that tries to strike a balance between these two competing interests of sovereignty on the part of the state, and the protection of the individual’s rights, is a ‘diplomatic’ approach to interpretation because it seeks to ensure a balance for both parties. The paper examines the margin of appreciation doctrine of the European Court of Human Rights (‘the Court’) and proffers it as an example of such a ‘diplomatic tool’ of interpretation.
Through an examination of case law on the evolution of the margin of appreciation in the jurisprudence of the Court, it concludes that the fluid nature of the doctrine has made it a useful diplomatic tool of interpretation. The margin of appreciation doctrine remains a necessary part of international human rights in Europe and contributes to the continued legitimacy of the Court.

Keywordsmargin of appreciation; diplomacy; international law; european court of human rights; human rights
Year2016
PublisherCollege of Law Humanities and Social Sciences, University of Derby
Web address (URL)http://hdl.handle.net/10545/620555
hdl:10545/620555
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Open
Publication dates2016
Publication process dates
Deposited12 Oct 2016, 14:20
ISBN978-1-910755-07-5
ContributorsUniversity of Derby
JournalProceedings of the International Conference on Diplomacy and International Relations
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Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the ECHR
Ita, Rachael and Hicks, David 2021. Beyond Expansion or Restriction? Models of Interaction between the Living Instrument and Margin of Appreciation Doctrines and the Scope of the ECHR. International Human Rights Law Review. 10 (1), pp. 40-74. https://doi.org/10.1163/22131035-01001004