The European Convention on Human Rights and the Margin of Appreciation

22 Pages Posted: 11 Jan 2012

Date Written: January 10, 2012

Abstract

The debate as to whether courts are too eager, or not eager enough, in holding that government regulations violate individuals’ fundamental rights has raged across decades and across jurisdictions. The underlying considerations are particularly acute when the courts concerned are supranational courts – and thus further removed than national judges from the societies affected by their judgments. The European Court of Human Rights has grappled with this issue by developing the concept of a margin of appreciation and thereby according to Contracting States an element of judgment in securing the rights enshrined in the Convention. The margin of appreciation has been central to the jurisprudence of the Court and is of major importance to the Contracting States. It has assumed even more significance as the Court, through its case law, has expanded Convention rights. This paper focuses on the use by the Court of the concept of a margin of appreciation and considers, in particular, whether the use of that concept provides a sufficient safeguard against what some people see as an overactive court which has interpreted the Convention in a manner that the original Contracting States could never have envisaged.

Suggested Citation

Gallagher, Paul, The European Convention on Human Rights and the Margin of Appreciation (January 10, 2012). UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 52/2011. Available at SSRN: https://ssrn.com/abstract=1982661 or http://dx.doi.org/10.2139/ssrn.1982661

Paul Gallagher (Contact Author)

UCD School of Law ( email )

Belfield
Dublin 4
Ireland

Register to save articles to
your library

Register

Paper statistics

Downloads
1,080
Abstract Views
3,387
rank
19,029
PlumX Metrics