What's so Funny About Peace, Love, and Understanding? How the Margin of Appreciation Doctrine Preserves Core Human Rights within Cultural Diversity and Legitimises International Human Rights Tribunals
Hanse Law Review, Vol. 1, p. 47, 2005
18 Pages Posted: 10 May 2005
The article by Aaron A. Ostrovsky deals with the margin of appreciation doctrine which has emanated from the European Court of Human Rights. The doctrine has become a tool of vital importance to accommodate diversity within Europe. The Court uses the doctrine to determine which issues should allow the interpretation of fundamental rights according to the cultural traditions of an individual State, and which issues are so essential that all States have to meet the same prerequisites.
The article details the concept of the doctrine by describing its development and by presenting the enormous value it embodies. This last point is illustrated by comparing the doctrine with the American concept of the rational basis test, which has noticeable similarities with the margin of appreciation doctrine. The author also critically discusses the legitimacy of the margin of appreciation as a method for resolving disputes that concern questions of cultural relativism, and finds that the doctrine is a useful method to achieve this aim. The possible abuse of the doctrine is also highlighted.
Keywords: International, Human Rights, margin of appreciation, European Court of Human Rights, comparative human rights, universalism, cultural relativism
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