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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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Nature of the Right and Type of Case

Nature of the Right and Type of Case

(p.200) 8 Nature of the Right and Type of Case
The Margin of Appreciation in International Human Rights Law

Andrew Legg

Oxford University Press

It is often said that the nature of the right and the type of case are further factors for a margin of appreciation. This chapter explains that these matters are not in themselves grounds for deference but they do affect how much impact reasons for deference can have in the reasoning of the tribunals. In this way, they affect the reasoning of the margin of appreciation. It explores how different categories of rights will therefore demand more or less of reasons for a margin of appreciation. Absolute rights (life, prohibition of torture) give limited scope for the margin of appreciation; strong rights (fair trial, liberty, derogations) allow a little more scope for deference; qualified rights (privacy, freedoms of religion, assembly and speech, and non-discrimination) appear to anticipate a role for the margin of appreciation; and “weak” rights (property, education and free elections) give a wide measure of diversity to states.

Keywords:   nature of the right, type of case, absolute rights, life, torture, qualified rights, privacy, freedom of speech, property rights

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