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Human Rights: Moral or Political?$
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Adam Etinson

Print publication date: 2018

Print ISBN-13: 9780198713258

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780198713258.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 23 January 2022

Appreciating the Margin of Appreciation

Appreciating the Margin of Appreciation

(p.269) 8 Appreciating the Margin of Appreciation
Human Rights: Moral or Political?

Andreas Follesdal

Oxford University Press

The European Court of Human Rights (ECtHR) has a practice of granting states a ‘Margin of Appreciation:’ the Court grants states the authority to decide, in some cases, whether they are in compliance with their obligations under the European Convention on Human Rights. This deference by the ECtHR toward states merits philosophical attention: it is criticized by some for being too respectful of state sovereignty and insufficiently protective of human rights, and by others for the reverse. In addition, the ECtHR seems to be employing this practice more frequently. What precisely is this practice, why did it arise, and is it—or can it be made—normatively legitimate? The chapter seeks to specify some vague aspects of the practice, in light of a justification for the legal practice which acknowledges the value of democratic deliberation.

Keywords:   margin of appreciation, European Court of Human Rights, European human rights law, democratic theory

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