Margin of Appreciation Doctrine in European Human Rights Law

Summative Assignment
LW223-5-FY
European Human Rights Law

Table of Contents
Introduction......................................................................................................................................3
The Margin of Appreciation doctrine..............................................................................................3
Conclusion.....................................................................................................................................14
Bibliography..................................................................................................................................15

INTRODUCTION
The present study is based on the critical analysis and evaluation of the margin of appreciation
doctrine. It studies the concept and considers whether it weakens the role of the European Court
of Human Rights or not. The study also covers the manner by which this doctrine impacts and
endangers the effectiveness of the European Convention on Human Rights through its functions.
The study includes proper justification and analysis of the facts and concepts that are associated
with the margin of appreciation doctrine, it eventually determines the notion of this doctrine and
makes a valid conclusion.
THE MARGIN OF APPRECIATION DOCTRINE
The margin of appreciation is considered as a doctrine with a broad scope of international human
rights; it has been established by European Court of Human Rights, to make a judgement on if or
if not a state party to the European Convention on Human Rights shall be sanctioned for
derogations1. The margin of appreciation was developed to the European Court of Human Rights
to primarily offset the sovereignty of State with the obligation to secure the Convention rights
and the rights of a person in opposition to the general interest2. Further, this doctrine enables the
1 Dominic McGoldrick,. "A Defence of the Margin of Appreciation and an Argument for its
Application by the Human Rights Committee." International & Comparative Law
Quarterly 65.1 (2016): 21-60.
2 Eyal Benvenisti,. "The Margin of Appreciation, Subsidiarity and Global Challenges to
Democracy." Journal of International Dispute Settlement 9.2 (2018): 240-253.

Court to resolve practical distinctions in adopting the articles of the Convention. However, these
concerned doctrines form a restricted right for the parties who make a contract, to derogate from
the requirements put into force in the Convention3. Nevertheless, in accordance with the ECtHR,
this margin is restricted, and is subjected to supervision, and would differ as a function of the
sensitive issue and the extent by which the legal interests followed by the state can be taken into
account objectively, and the change of the European consents on the matter.
In addition, the doctrine also strengths the European Convention’s role, as a supervisory
structure meant for human rights. With the application of this discretion, the European Court
makes the judgement that it is mandatory to consider the differences in local laws of contracting
sales as they are related to process and substances4. Similarly, the margin of appreciation
includes the concepts that are equivalent to the subsidiarity principle, which takes place in the
unrelated area of EU law. The intention of the margin of appreciation is to offset the individual
rights with state interest and to resolve any of the possible conflicts. It has been recommended
that the European Court is required to refer back to the national decisions, as they are
international court rather than the bill of rights5. The margin of appreciation is said to be
3 Yuka Fukunaga,. "Margin of Appreciation as an Indicator of Judicial Deference: Is It
Applicable to Investment Arbitration?." Journal of International Dispute Settlement 10.1 (2019):
69-87.
4 Dimitrios Tsarapatsanis,. "The margin of appreciation doctrine: a low-level institutional
view." Legal Studies 35.4 (2015): 675-697.
5 Eirik Bjorge,. "Been There, Done That: The Margin of Appreciation and International
Law." Cambridge J. Int'l & Comp. L. 4 (2015): 181.