What is it about?
It was 1976 when, in the case of Handyside v. the United Kingdom, the European Court of Human Rights held for the first time that the European Convention on Human Rights “leaves to the Contracting States a margin of appreciation” in making the assessment of the reality of the social need implied by the notion of “necessity” (in a democratic society) which must exist in order to justify limitations of human rights. Forty-five years later, in 2021, Protocol No. 15 entered into force and incorporated the “margin of appreciation” in the Preamble of the ECHR. For a long time, the margin of appreciation has been considered a unique feature of the European human rights system, consistently ignored or explicitly rejected by other international adjudicators. This paper aims at assessing whether the recent international judicial practice still confirms such a conclusion or whether the margin of appreciation migrated across the case-law of different international courts and tribunals and is, nowadays, a doctrine that can be applied to the assessment of the scope and content of international obligations and to the review of compliance with such obligations in general, not exclusively in the field of human rights and beyond the European context.
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This page is a summary of: Exporting the Margin of Appreciation, The Law and Practice of International Courts and Tribunals, August 2024, Brill,
DOI: 10.1163/15718034-bja10122.
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