Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights



Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights

Introduction

Rights of individuals are not absolute. This specific statement presumes that, just for the sake of community interests, the rights of individuals are subject of restriction. The international treaties, covenants, and conventions mirror this reason with particular “derogation clauses” where rights of individuals are restricted to preserved public order, national security and moral values. The guarantee of this reason is also mention and attempted to prove by the other of European Convention on Human Rights. The very rationality of protecting national security and public interest in line with rights of individuals in various international conventions has brought a compromise between the international organs and state parties of conventions. Where as the state parties to the international organs are attempting to attain maximum application of convention or treaty terms. Thos compromise between international and state organs has been attained by so called derogation clauses. In general these clauses in the international organs majorly offer states with an extensive discretion to determine whether there is threat to their public order or national security and offers a right to derogate from obligation of their treaty. The margin of appreciation doctrine was established to occupy major position in European Court of Human Rights Jurisprudence operating under the European court of Human Rights. The Doctrine of Margin of Appreciation was developed in the case law originating from the European commission and court of Human Rights. The origin of the doctrine of margin of appreciation was found in the framework of the judicial review of legal system of administrative decision. This doctrine was implemented by the Strasbourg Organs and transferred into the regional level of adjudicating human rights issues. The doctrine of margin of appreciation flourished at the time of implementation of the European Convention on Human Rights. This doctrine presupposes the existence of truly democratic states, with an independent judiciary undoubtedly.

This doctrine could only have been developed in a European system of protection that was believed exemplary, typical of a Western Europe (before 1989) relatively homogeneous in their perceptions of a common historical experience. It can not be assumed, as surely apparent past, that all the member states of the regional human rights system are true Rule of Law. Thus, the doctrine of “margin of appreciation” requires a serious reconsideration. Fortunately such a doctrine not found explicit parallel development in case law under the American Convention on Human Rights. “The purpose of this paper is to analyze the application of Margin of Appreciation Doctrine in the Context of Article 15 of the European Convention on Human Rights. In this paper I shall be mainly focusing on the application by the commission and court of the doctrine.

Purpose

The margin of Appreciation was developed so that to allow protect the rights of individual and nation by allowing a balance of state ...