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The European Human Rights model

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  1. The margin of appreciation
  2. Margin of appreciation and flexibility
  3. Margin of appreciation and complex human rights issues
  4. Margin of appreciation and national sovereignty

The interpretation as well as the application of international human rights conventions has never been an easy task. Even though the international courts have been tasked with the responsibility of interpreting the international human right conventions, the function of trying to protect the human rights against possible state interference has not t been an easy one. This is despite the competence that such courts have. These international courts must always exercise great skills and expertise so as to be able to accommodate the expectations of the citizens on human right protection. This is in addition to taking into account the social settings which are ever changing and the will of the states.

[...] In these matters, the ECtHR has normally granted a very broad and wide autonomy which has opened ways for the state rules to prevail[12]. In some of the decisions that have been made based on the margin of appreciation, contractions have however arisen indicating that despite the benefits of the doctrine, it also raises challenges which in turn affect human right protection. In most cases, the doctrine of margin of appreciation has allowed the acceptance of state decisions on cases involving human rights[13]. This includes giving to autonomy to the states in sensitive matters like religion and morality right . [...]


[...] The court however paid attention to the debate that had taken place on that particular law. This is the view of the grand chamber was insufficient to distinguish the law form that which had been considered restrictive in the Arsalan case. The decision however showed how at times the application of the doctrine could be complicated. Margin of Appreciation and National Sovereignty The doctrine of appreciation has ensured that the courts do not give decisions which are unnecessary and which nay have far reaching implication on human rights protection[17]. [...]


[...] The use of the doctrine has elicited different views from different quarters on the importance, validity and the impact that the doctrine has had on human right protection among member states. It has been observed that the system of human right protection in Europe is a product of division of labour between the various member states and the ECtHR[5] The doctrine has allowed the courts to be responsible for the protection whereas the Strasbourg court is tasked with intervening in the cases where the remedies that are available in the states have been exhausted[6]. [...]


[...] The margin of appreciation has been heavily criticized for being an interpretative device which has been used to make it difficult to generalize the legal issue and answers associated with human rights protection. It has also been argued that it has provoked structural incongruence and endangered legal certainty. Moreover, some critics have argued that the margin of appreciation has prevented the Convention from being able to consolidate a good and focused reliable system of protecting human rights in the region. [...]


[...] The Margin of Appreciation Since Handyside v. United Kingdom[4], the margin of appreciation has heavily been adopted and used in the ECtHR. The purpose of this doctrine has been to grant deference to state judgments in order to protect the rights which are set out in the Convention. Various reasons for justification of the deference have been given by the court. Originally the margin of appreciation was developed in response to the concerns by the member states that the Conventions Rights would prohibit the states from implementing their state security measures. [...]

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