Browsing Derby Law School by Authors
The Evolution of the Margin of Appreciation Doctrine: A Case of Diplomacy in International Human Rights Adjudication?Ita, Rachael; University of Derby (College of Law Humanities and Social Sciences, University of Derby, 2016)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.