Appreciating the Margin of Appreciation
Book chapter published by Andreas Føllesdal in Adam Etinson (ed.), Human Rights: Moral or Political?, Oxford University Press, 2018.
About the book
How should an international human rights court best pay due respect to both the treaty and to its sovereign creators? The European Court of Human Rights (ECtHR) is a prime case. It reviews whether states uphold their obligations under the European Convention on Human Rights (ECHR). The Court is also authorized to rule on whether states may violate certain of their citizens’ rights – as the Convention permits - in order to protect morals, the conflicting rights of others, national security or other considerations (e.g. Articles 8 and 15).
One mechanism that arguably serves to reduce the risk that the ECtHR will abuse its power is the margin of appreciation (MA) doctrine that the Court has developed. The Court grants states the authority to decide, in some cases, whether they are in compliance with their treaty obligations. Is the MA doctrine a sound response to this perceived dilemma between majoritarian democracy and protection of human rights? The present chapter presents and defends some form of the MA doctrine precisely as a contribution by the Court to both protect human rights and to promote domestic democracies. I shall also suggest reforms to render it more legitimate.
More information here.