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• Title:The margin of appreciation in international human rights law : deference and proportionality / Andrew Legg.
  
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• Author/Creator:Legg, Andrew, 1983-
  
• Published/Created:Oxford : Oxford University Press, 2012.
  

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  • Location:LAW LIBRARY (level 3)Where is this?
    
  • Call Number: K3240 .L44 2012
    
  • Number of Items:1
    
  • Status:c.1 On loan - Due on 09-15-2024
    

   
• Library of Congress Subjects:Human rights.
  
• Edition:1st ed.
  
• Description:xxv, 232 p. ; 24 cm
  
• Series:Oxford monographs in international law.
  
• Notes:Includes bibliographical references and index.
  
• ISBN:9780199650453 (hbk.)
  0199650454 (hbk.)
  
• Contents:Machine generated contents note: 1. Introduction
  1. margin of appreciation in the ECtHR, IACtHR, and the UN HRC
  2. Book structure
  3. Approach
  pt. I THEORY: CONCEPTUALIZING AND JUSTIFYING THE MARGIN OF APPRECIATION
  2. Deference: Reasoning Differendy on the Basis of External Factors
  1. Introduction
  2. Assigning weight differently on the basis of external factors
  3. Deference on the basis of external factors
  4. Types of reason for deference
  a. Relationships and comity
  b. Epistemic limitations and expertise
  5. Cases that demonstrate this approach in practice
  a. European Court of Human Rights (ECtHR)
  b. Inter-American Court of Human Rights (IACtHR)
  c. United Nations Human Rights Committee (UN HRC)
  6. Conclusion
  3. Different Approaches to Deference in International Human Rights Law
  1. Introduction
  2. margin of appreciation and relativism about human rights
  a. meaning of universality in moral discourse
  b. Moral universality and the margin of appreciation
  c. Legal rights that implement moral rights
  d. Legal orders and comparisons
  e. margin of appreciation and relativism in practice
  f. Summary
  3. Critiques of deference
  a. `one right answer' thesis
  b. Harmonization and integration
  c. Supporting case law
  d. Summary
  4. Justifying the margin of appreciation
  a. Tribunals as forums for the contestation of sovereignty
  b. Deference and subsidiarity
  c. Views of commentators
  d. practice of the Tribunals
  e. Summary
  5. Conclusion
  pt. II PRACTICE: FACTORS AFFECTING THE MARGIN OF APPRECIATION
  4. Democracy and Participation
  1. Introduction
  2. Theories of judicial review and the justification of the margin of appreciation for democratic reasons
  3. contribution of the Tribunals to theories of democracy in international law
  4. Democratic legitimacy as an external factor for the margin of appreciation in practice
  a. European Court of Human Rights (ECtHR)
  b. Inter-American Court of Human Rights (IACtHR)
  c. United Nations Human Rights Committee (UN HRC)
  d. Giving state legislatures time to change the law
  5. Cases in which democratic legitimacy is a factor in favour of granting the state a margin of appreciation
  a. Conflicting private rights: testing the choice of the legislature
  b. Conflicting personal-public freedoms: questions of moral or political controversy
  6. Cases in which democratic legitimacy issues heighten scrutiny
  a. Democratic rights: the example of electoral participation
  b. Minorities and vulnerable groups
  c. lack of societal/parliamentary debate
  d. application of legal formulae where the provisions are too broad-brush
  e. Other rule of law concerns
  7. Conclusion
  5. Treaty Interpretation, Current State Practice, and Other International Law Influences on the Practice of Deference
  1. Introduction
  2. State consent and the legality of international agreements
  3. Treaty interpretation: Article 31 of the Vienna Convention on the Law of Treaties (VCLT) and the special status of human rights treaties
  a. Original intent or evolutive interpretation
  b. Treaty provisions with autonomous meanings
  c. Summary
  4. Other approaches to the role of current state practice
  5. Current state practice as an external factor affecting the margin of appreciation in practice
  a. Lack of consensus increases deference
  b. Current state practice in the applicant's favour heightens scrutiny
  c. Current state practice in the state's favour increases deference
  d. Current state practice is not calculated with precision
  6. Deference to international norms, institutions, and organizations
  a. Decisions of other international human rights tribunals
  b. European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR)
  c. Resolutions of the United Nations Security Council (UNSC)
  d. Other international law norms
  7. Conclusion
  6. Expertise and Competence
  1. Introduction
  2. Epistemology, expertise, and judicial responsibility
  3. Expertise as a factor for the margin of appreciation in practice
  a. European Court of Human Rights (ECtHR)
  b. Inter-American Court of Human Rights (IACtHR)
  c. United Nations Human Rights Committee (UN HRC)
  4. Types of expertise where there are commonly stronger grounds for a margin of appreciation
  a. National security
  b. Child protection
  c. Healthcare
  d. Education
  e. Policing and civil service
  f. Economic matters
  5. Heightened scrutiny where the Tribunals have expertise
  a. Legal procedures
  b. Reasonable time
  c. Legal interpretation
  6. Conclusion: expertise and subsidiarity
  pt. III STRUCTURE OF HUMAN RIGHTS ADJUDICATION: THE MARGIN OF APPRECIATION AND PROPORTIONALITY
  7. Proportionality: Determining Rights
  1. Introduction
  2. origins of proportionality
  3. Theories of rights: balancing, trumps, and human rights determinations
  a. Interest-based theories
  b. Rights as trumps (reason-blocking theories)
  4. margin of appreciation and proportionality in human rights adjudication
  a. conceptual connection between the margin of appreciation and proportionality
  b. Cases that demonstrate the connection between the margin of appreciation and proportionality
  5. Conclusion: the structure of decision-making in human rights law
  8. Nature of the Right and Type of Case
  1. Introduction
  2. How the `nature of the right' or `type of case' may affect the margin of appreciation or proportionality
  3. nature of the right
  a. Absolute rights: life and freedom from torture
  b. Strong rights: fair trial, liberty, and derogations
  c. Qualified rights: privacy, and freedoms of religion, association, speech, and non-discrimination
  d. Weak rights: property, education, and free elections
  4. Types of case
  5. Conclusion
  9. Concluding Remarks.