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@article{ART003033952},
author={Yoon Jin Shin},
title={A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court},
journal={Journal of Human Rights Studies},
issn={2635-4632},
year={2023},
volume={6},
number={2},
pages={1-70},
doi={10.22976/JHRS.2023.6.2.1}

TY - JOUR
AU - Yoon Jin Shin
TI - A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court
JO - Journal of Human Rights Studies
PY - 2023
VL - 6
IS - 2
PB - Korean Association of Human Rights Studies
SP - 1
EP - 70
SN - 2635-4632
AB - The European Court of Human Rights has habitually applied the margin of appreciation doctrine, granting states parties wide discretion to interpret the provisions and elements of the European Convention on Human Rights with respect to rights restrictions. The Court has applied this doctrine mainly in areas of essential liberty rights, whose restrictions deserve a stricter standard of review. A wider margin of appreciation has been recognized for states in cases where moral, religious or cultural elements in a given society are deemed to be closely engaged or where there is no European consensus on the matter at hand. General grounds provided by the Court for the application of the doctrine include: the principle of subsidiarity, the assumption that the state party is in a better position to interpret the elements of human rights cases compared to international judges, and respect for state sovereignty and democratic processes. Political considerations on the part of the Court to prevent conflict with states parties, secure the authority of the Court and maintain the operational stability of the Convention system also play a crucial role. The margin of appreciation doctrine, based on these elements and considerations, is used to easily justify discrimination and human rights violations against minority groups and individuals in society, as the doctrine tends to drive the Court’s review to uphold majoritarian preferences rather than universal human rights principles. The current use of the doctrine goes against the expected role of the regional human rights court to implement human rights principles coherently and independently of political pressure from within and outside individual states. It also distorts the relationship between the universality and particularity of human rights and hinders the realization of genuine values of particularity in human rights cases. Wide use of the doctrine has also jeopardized the proportionality principle and the rule of law. The Court needs to cease considering improper factors that it has invoked when applying the doctrine, and should instead establish a coherent and systematic adjudication standard, based on the proportionality principle, that incorporates elements necessary for a concrete and contextualized rights review.
KW - the European Court of Human Rights;the Margin of Appreciation Doctrine;Rights of Social Minorities;Universality and Particularity;Standards of Human Rights Review;the Principle of Proportionality
DO - 10.22976/JHRS.2023.6.2.1
ER -

Yoon Jin Shin. (2023). A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court. Journal of Human Rights Studies, 6(2), 1-70.

Yoon Jin Shin. 2023, "A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court", Journal of Human Rights Studies, vol.6, no.2 pp.1-70. Available from: doi:10.22976/JHRS.2023.6.2.1

Yoon Jin Shin "A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court" Journal of Human Rights Studies 6.2 pp.1-70 (2023) : 1.

Yoon Jin Shin. A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court. 2023; 6(2), 1-70. Available from: doi:10.22976/JHRS.2023.6.2.1

Yoon Jin Shin. "A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court" Journal of Human Rights Studies 6, no.2 (2023) : 1-70.doi: 10.22976/JHRS.2023.6.2.1

Yoon Jin Shin. A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court. Journal of Human Rights Studies, 6(2), 1-70. doi: 10.22976/JHRS.2023.6.2.1

Yoon Jin Shin. A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court. Journal of Human Rights Studies. 2023; 6(2) 1-70. doi: 10.22976/JHRS.2023.6.2.1

Yoon Jin Shin. A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court. 2023; 6(2), 1-70. Available from: doi:10.22976/JHRS.2023.6.2.1

Yoon Jin Shin. "A Critical Analysis of the Margin of Appreciation Doctrine in the European Court of Human Rights Jurisprudence: Rights of Social Minorities and the Role of a Regional Human Rights Court" Journal of Human Rights Studies 6, no.2 (2023) : 1-70.doi: 10.22976/JHRS.2023.6.2.1