Exporting the Margin of Appreciation

Abstract It was in 1976 when, in the case of Handyside v. the United Kingdom , the European Court of Human Rights held that the European Convention on Human Rights “leaves to the Contracting States a margin of appreciation”. Forty-five years later, in 2021, Protocol No. 15 entered into force and incorporated the “margin of appreciation” into the Preamble of the ECHR . For a long time, the doctrine has been considered a unique feature of the European human rights system, consistently ignored or explicitly rejected by other international adjudicators. This article aims to assess whether the recent international judicial practice still confirms such a conclusion, or whether the margin has migrated across the case law of different international courts and is, nowadays, a doctrine that can be applied to the assessment of the scope and content of international obligations and to the review of compliance with such obligations in general.

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Publication Details

Journal
The Law and Practice of International Courts and Tribunals
Published
2024-08-20
DOI
https://doi.org/10.1163/15718034-bja10122
Primary Topic
International Arbitration and Investment Law
Type
article
Field-Weighted Citation Impact
0.00
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article

Exporting the Margin of Appreciation

Lorenzo Acconciamessa
The Law and Practice of International Courts and Tribunals
International Arbitration and Investment Law
article

Exporting the Margin of Appreciation

Lorenzo Acconciamessa
article en

Abstract

Abstract It was in 1976 when, in the case of Handyside v. the United Kingdom , the European Court of Human Rights held that the European Convention on Human Rights “leaves to the Contracting States a margin of appreciation”. Forty-five years later, in 2021, Protocol No. 15 entered into force and incorporated the “margin of appreciation” into the Preamble of the ECHR . For a long time, the doctrine has been considered a unique feature of the European human rights system, consistently ignored or explicitly rejected by other international adjudicators. This article aims to assess whether the recent international judicial practice still confirms such a conclusion, or whether the margin has migrated across the case law of different international courts and is, nowadays, a doctrine that can be applied to the assessment of the scope and content of international obligations and to the review of compliance with such obligations in general.

The Law and Practice of International Courts and TribunalsVol. 23(2)
Université Paris 1 Panthéon-Sorbonne (FR), University of Palermo (IT)
Peace, Justice and strong institutions
Openalex Percentile: Top 77%
International Arbitration and Investment Law
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