A DEFENCE OF THE MARGIN OF APPRECIATION AND AN ARGUMENT FOR ITS APPLICATION BY THE HUMAN RIGHTS COMMITTEE

Dominic McGoldrick

119 citations0/0 files storedInternational and Comparative Law Quarterly

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European and International Law Studies International Law and Human Rights Legal Rights and Human Rights

Abstract

Abstract The margin of appreciation (MoA) has become the central conceptual doctrine in the institutional and jurisprudential architecture of the European Convention on Human Rights (ECHR). This article critiques the existence and operation of the MoA within the ECHR system and defends its use. It is submitted that as each of the central justifications for the MoA under the ECHR applies equally to the International Covenant on Civil and Political Rights (ICCPR), so the doctrine should be applied by the Human Rights Committee.

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References

2007The Relative Universality of Human Rights 2003Subsidiarity as a Structural Principle of International Human Rights Law 2005Toward a General Margin of Appreciation Doctrine in International Law?2010Pluralism, Deference and the Margin of Appreciation Doctrine 2014Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity 2012Allowing the Right Margin: The European Court of Human Rights and The National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?2011The Inflation of the Margin of Appreciation by the European Court of Human Rights 2008Import, Export, and Regional Consent in the Inter-American Court of Human Rights

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2020Religious Freedom in Flux: The European Court of Human Rights Grapples with Ethnic, Cultural, Religious, and Legal Pluralism 2020THE PRINCIPLE OF PROPORTIONALITY IN THE JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS

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