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

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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(p.175) Part III The Structure of Human Rights Adjudication: The Margin of Appreciation and Proportionality

(p.175) Part III The Structure of Human Rights Adjudication: The Margin of Appreciation and Proportionality

Source:
The Margin of Appreciation in International Human Rights Law
Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199650453.011.0003

Part Two of the book explored three factors for the margin of appreciation. It is often said that there are other factors affecting the margin of appreciation, such as the nature of the right or the type of case. Part Three explores how such ‘factors’ affect the margin of appreciation, and argues that they affect it differently from the other three factors. Rather than providing any justification for the margin of appreciation, the ‘nature of the right’ contains first-order considerations that must be weighed along with reasons for deference. In other words, the ‘nature of the right’ necessarily broadens or narrows the margin of appreciation by requiring stronger or weaker grounds for deference depending on the rights engaged or the type of case.

The factors for the margin of appreciation and all other factors in the case, such as the nature of the right, are weighed by the Tribunals as part of their decision-making process. This weighing process is often referred to as the ‘proportionality assessment’. Discussions of proportionality in human rights rarely discuss how it interacts with the margin of appreciation doctrine. Chapter 7 proposes a new account of proportionality that considers how factors for a margin of appreciation interact with the other factors in a case, which is likely to be of primary interest to academics and students of international human rights law.

Chapter 8 discusses how the nature of the right impacts the margin of appreciation, and accordingly is likely to be of interest to those readers making and considering legal arguments for a margin of appreciation. The chapter explores how different rights or types of case may provide more or less scope for a margin of appreciation, and discusses a number of examples by way of illustration.

Accordingly, Part Three considers how the margin of appreciation fits with other factors to be considered by the Tribunals and suggests a structure for adjudication in human rights law. (p.176)