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The Margin of Appreciation Doctrine and the Principle of Proportionality in the ECHR

By Yutaka Arai

Abstract

This book analyses the case-law of the European Convention on Human Rights with particular reference to the margin of appreciation doctrine and the principle of proportionality. While the margin of appreciation has been closely associated with the notion of judicial restraint, the principle of proportionality is an interpretive device designed to restrain the power of State authorities and to provide greater protection of individual autonomy. By analysing the disparate fields in which Convention rights are raised, this book seeks to identify various policy grounds affecting the scope of margin and the standard of review. The survey reveals that there exists complex interplay of numerous judicial policies pursued by the European Court and Commission of Human Rights, belying a perceived dichotomy between judicial self-restraint and judicial activism. The examination of the case-law is followed by a disaggregating analysis of the margin of appreciation, an attempt that aims to elucidate criteria and rationales for the doctrines application, assisting readers better to grasp its nature. Fully incorporating the cases decided since the entry into force of the Eleventh Protocol, this book will be of interest to all academics, students and practitioners of European human rights law and international human rights law in general

Topics: K
Publisher: Intersentia
Year: 2002
OAI identifier: oai:kar.kent.ac.uk:1596
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