Deference in International Courts and Tribunals - Standard of Review and Margin of Appreciation Edited by, Lukasz Gruszczynski and Wouter Werner Oxford: OUP, 2014, 464 pp. £70 GBP (original) (raw)
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The margin of appreciation is controversial and difficult to understand. Since its first reference in the case of Greece vs. UK, the meaning of this doctrine has evolved from deference to derogation from the European Convention to an inflation of language used or misused by the Strasbourg Court to preserve the State's "room for manoeuvre" or "latitude of deference or error." In this paper, I divide the concept of margin of appreciation into two categories: the substantive and structural concept. The Strasbourg Court usually generously defers to national decisions in structural scrutiny where it has to respect European pluralism and the collective interests of the contracting parties unless domestic decisions are regarded as "manifestly unreasonable." In contrast, the European Human Rights Court scrutinizes carefully in the substantive sense of margin of appreciation. Some factors or test approaches will be identified first, by which the Court substantively narrows or limits the scope of margin preserved for the States. The result of two conceptual margins of appreciation may be reciprocally transformed in some circumstances. When the collective good surely undermines the core of Convention rights, the Court will not stand with the domestic argument since it must ensure the implementation of pan-European human rights standards. On the other side, the Court has no capacity to further increase strict scrutiny in cases where there is a complicated relationship between the means and ends in the proportionality test, implying that domestic courts are better placed than the supranational court given the fact that they know better the local reality and have more local knowledge.
SSRN Electronic Journal, 2014
The European Court of Human Rights and the Inter-American Court of Human Rights have different approaches at the time of applying the margin of appreciation in cases involving the lack of regional consensus. While the European court shows a degree of discretion to states’ policies in areas of social disagreement, the Inter-American court does not. This is grounded both in history and politics. In this respect, the European court– with all its inconsistencies – has always looked at itself as a supranational tribunal with subsidiary jurisdiction. On the contrary, the Inter-American court, by adopting an aggressive standard of review, ignores the need of judicial deference. This is consistent with the desire of many academic and scholars who seek to transform this tribunal into the new constitutional court of the Americas. In this context, the margin of appreciation has little to say.
The International Court of Justice and tacit conventionality
2015
The ‘written’ is the traditional domain of lawyers, for written materials provides a tangible soil from which legal contents can be extracted and converted into binding evaluative standards (ie legal normativity) on the basis of which the behaviour of addressees is appraised. The ‘written’ is thus the primary receptacle of all binding evaluative standards at which lawyers direct their interpretive activities. This is not to say that ‘the written’ enjoys an exclusive monopoly on the production of legal normativity. Most legal systems somehow accommodate the creation of binding evaluative standards through non-written materials. International law, however, distinguishes itself from other legal systems by virtue of the generous room it reserves for legal normativity generated through non-written materials. Indeed, when it comes to the production of binding evaluative standards, the ‘non-written’ has always enjoyed a privileged position in international law. For instance, the doctrine o...