The Margin of Appreciation Revisited

Abstract

The idea that states have discretion in complying with their human rights obligations, and the idea that human rights obligations should be compatible with a degree of diversity between states, are either trivial or misleading. In order to assess properly the doctrine of the Margin of Appreciation, one has to reconstruct it as a normative thesis about the conditions under which an international human rights court should place substantial weight on a decision by a domestic authority. Thus understood, however, the doctrine is problematic as it offends the values underlying human rights and the rule of international law. The chapter evaluates Andreas Follesdal’s particular defence of the Margin of Appreciation and argues that neither sovereignty nor democracy provides normative support for unqualified judicial deference. It argues further that the exceptions Follesdal wishes to place on deference to democratic institutions end up covering the whole of the scope of human rights obligations, making the idea of deference redundant.