Andrew Legg (Essex Court Chambers) has published The Margin of Appreciation in International Human Rights Law: Deference and Proportionality (Oxford Univ. Press 2012). Here's the abstract:
The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation?
This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and catalogues the key cases affecting the doctrine in practice.
Source: International Law Reporter
Mostrando entradas con la etiqueta Corte Europea de Derechos Humanos. Mostrar todas las entradas
Mostrando entradas con la etiqueta Corte Europea de Derechos Humanos. Mostrar todas las entradas
17 jul 2012
12 jun 2012
Arato: Constitutional Transformation in the ECtHR: Strasbourg's Expansive Recourse to External Rules of International Law
Julian Arato (New York Univ. - Law) has posted Constitutional Transformation in the ECtHR: Strasbourg's Expansive Recourse to External Rules of International Law (Brooklyn Journal of International Law, Vol. 37, no. 2, p. 348). Here's the abstract:
The European Court of Human Rights is a constituted judicial body, established by international treaty among the member States of the Council of Europe. Yet it can hardly be described as a static creature of the Parties.
The Court has undergone dramatic constitutional change since its inception, resulting in an organization significantly more autonomous, independent, and robust in its maturity. Certain important changes have been achieved through formal amendment by the Parties. At the same time, however, the constitution of the ECtHR has undergone a quieter, informal kind of development – through the Court’s own practice in the discharge of its normal functions. Change of this latter type may be called constitutional transformation, by contrast to formal constitutional amendment. This paper is about the transformative effect of the Court’s approach to the interpretation of its constituent instrument, the ECHR. More specifically, the focus is on its approach to one particular technique of interpretation, codified at VCLT 31(3)(c) (providing for the consideration of external sources of international law). On the one hand, as is often recognized, the Court relies on the technique to ground a dramatic and evolutive mode of treaty interpretation – expanding the substantive rights of the Convention in light of sources external to it. Yet on the other hand, I want to suggest, the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby expanding its own material competence to develop the Convention on the basis of developments outside of the Convention. This latter dimension of the Court’s interpretive approach, I argue, has brought about a genuine constitutional transformation.
Source: International Law Reporter
The European Court of Human Rights is a constituted judicial body, established by international treaty among the member States of the Council of Europe. Yet it can hardly be described as a static creature of the Parties.
The Court has undergone dramatic constitutional change since its inception, resulting in an organization significantly more autonomous, independent, and robust in its maturity. Certain important changes have been achieved through formal amendment by the Parties. At the same time, however, the constitution of the ECtHR has undergone a quieter, informal kind of development – through the Court’s own practice in the discharge of its normal functions. Change of this latter type may be called constitutional transformation, by contrast to formal constitutional amendment. This paper is about the transformative effect of the Court’s approach to the interpretation of its constituent instrument, the ECHR. More specifically, the focus is on its approach to one particular technique of interpretation, codified at VCLT 31(3)(c) (providing for the consideration of external sources of international law). On the one hand, as is often recognized, the Court relies on the technique to ground a dramatic and evolutive mode of treaty interpretation – expanding the substantive rights of the Convention in light of sources external to it. Yet on the other hand, I want to suggest, the Court gives 31(3)(c) itself an astonishingly broad construction, to justify considering an extraordinary array of external sources – thereby expanding its own material competence to develop the Convention on the basis of developments outside of the Convention. This latter dimension of the Court’s interpretive approach, I argue, has brought about a genuine constitutional transformation.
Source: International Law Reporter
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