Margin of Appreciation in ECHR Essay

Margin of Appreciation in ECHR Essay

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Importantly, the crux of this question mainly lies on a critical analysis on Harris’s statement on the application margin of appreciation under Art.2. and Art. 8 of European Convention on Human Rights (hereinafter referred to as ‘ECHR’). In examining Harris’s statement , it simply denotes that the application of the convention may often be varied because of the absence of consensus probably due to cultural relativism or pluralism. It has been propounded that human rights is universal , but it is inevitable for each country to adopt different practices and perception.
Although there were numerous movements in promoting the unity of the European, but it seems to have failed. Robertson indicates the unity principle’s outcome is less than what is desired. Thereby, as Murat notes, the court will invariably grant a leeway to the state in deciding the cases namely, the ‘Margin of appreciation’. This maxim owes it genesis from a French term ‘marge d’ appreciation’ that deemed as a doctrine which gives way to a state’s discretion in their governance.
More often than not, margin of appreciation doctrine applies when it comes to a question of ‘morality’. It seems to be a truism that Harris’s statement does reflect the court’s manoeuvre Notably, Jeffrey claims the more diversify of the laws on the state; a wider margin would be granted. As contended by Yutaka, a level of discretion will be allowed to the member states to consider any relevant circumstances. As a consequence, it can tentatively be concluded that doctrine could be one of the very efficient shields of the member states.
The paucity of European consensus thus results in some controversial issues left vaguely decided, for example, the right to abortion that come...


... middle of paper ...


...2003) 37 EHRR 611(Grand Chamber judgment)
Ibid at n45
Series A 28, pp48-50
Series A 250 , p90, 27th November 1992
Prof. Jeffrey A. Brauch, The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the rule of law, Vol.11, Columbia Journal of European Law (2004-2005)
Ibid n44
Report 1997-I-323
Ibid n50
Mahoney, Marvellous Richness of Diversity or Invidious Cultural Relativism? 12 Human Rights Law Journal 1, 5( 1998)
Ibid
Ibid at n50
Danny Shaw,’UK’s should cut links with ECHR’ BBC News, 7th February 2011 accessed 29th March 2011 < http://www.bbc.co.uk/news/uk-12338931#story_continues_1>
Tom Newton Dunn, ‘Go to the war on the Eurom Law’ The Sun, 7 February 2011accessed 29 March 2011 http://www.thesun.co.uk/sol/homepage/news/3395471/David-Cameron-urged-to-go-to-war-over-Euro-law.html
Ibid

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