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The Margin of Appreciation in International Human Rights LawDeference and Proportionality$
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Andrew Legg

Print publication date: 2012

Print ISBN-13: 9780199650453

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199650453.001.0001

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Different Approaches to Deference in International Human Rights Law

Different Approaches to Deference in International Human Rights Law

Chapter:
(p.38) 3 Different Approaches to Deference in International Human Rights Law
Source:
The Margin of Appreciation in International Human Rights Law
Author(s):

Andrew Legg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199650453.003.0003

Critics and supporters of the margin of appreciation are likely to have different views about the proper role of international courts in protecting human rights. There are two main approaches amongst commentators. Firstly, the “standard-unifying” approach (the role of tribunals is to harmonise human rights standards, any margin of appreciation involves relativism about rights, and the courts should find “one right answer” to human rights problems); and secondly, the “diversity-permitting” approach (since the courts are subsidiary to states, they should allow a limited differential approach to human rights; courts act as forums for the contestation of sovereignty in human rights, involving an interesting form of legal pluralism; the universality of human rights does not require uniformity of their protection, as illustrated by the discipline of comparative legal studies). This chapter argues that the “diversity-permitting” approach is to be preferred and is the approach generally adopted by the tribunals themselves.

Keywords:   subsidiarity, sovereignty, legal pluralism, rights as trumps, harmonizing rights, universality, relativism, uniformity, comparative law

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