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The Margin of Appreciation in International Human Rights Law

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

Author: Dr Andrew Legg
Publisher: Oxford University Press
ISBN: 9780199650453
Published In: July 2012
Format: Hardback , 264 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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A vibrant, thorough defence of the controversial issue of the margin of appreciation in international human rights law
Clear analysis of the case law on the basis of factors that affect the margin of appreciation
Assesses the margin of appreciation before three different systems: the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committees

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 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 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.

Readership: Academics and students of international human rights law; practitioners and judges working with international human rights law; government legal advisors

1: Introduction
Part One - Theory: Conceptualizing And Justifying The Margin Of Appreciation
2: Deference: Reasoning Differently On The Basis Of External Factors
3: Different Approaches To Deference In International Human Rights Law
Part Two - Practice: Factors Affecting The Margin Of Appreciation
4: Democracy And Participation
5: Treaty Interpretation, Current State Practice And Other International Law Influences On The Practice Of Deference
6: Expertise And Competence
Part Three - The Structure Of Human Rights Adjudication: The Margin Of Appreciation And Proportionality
7: Proportionality: Determining Rights
8: Nature Of The Right And Type Of Case
9: Concluding Remarks
Bibliography

Dr Andrew Legg, Barrister of Lincoln's Inn; Member of Essex Court Chambers, London

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.