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.
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Deference and Proportionality
Produktdetaljer
ISBN
9780191632150
Publisert
2020
Utgiver
Oxford University Press Academic UK
Språk
Product language
Engelsk
Format
Product format
Digital bok
Forfatter