Chapter 5: Disharmony in the Process of Harmonisation? – The Analytical Account of the Strasbourg Court’s Variable Geometry of Decision-making Policy Based on the Margin of Appreciation Doctrine
Yutaka Arai-Takahashi* 1. Introduction This chapter seeks to provide an analytical account of the margin of appreciation doctrine in the specific context of the harmonisation of the European Convention on Human Rights (ECHR or Convention). It draws on the affinities between the arguments concerning the margin of appreciation and theories on judicial discretion while duly taking into account the structural difference between the roles and remits of international and national judges. Its aim is to provide a coherent theoretical explanation for the questions whether and if so, how, this doctrine can be said to facilitate the harmonisation of the standards of the ECHR in the enriched jurisprudence of the European Court of Human Rights (the Strasbourg Court). The chapter firstly undertakes a thorough dissection of the intrinsic nature and underlying rationales of the margin of appreciation within the ECHR’s ‘constitutional’ framework. Secondly, it seeks to identify distinct methodologies leaning toward harmonisation, which can be distilled and culled from the Strasbourg Court’s reasoning processes. Thirdly, it analyses the role of the margin of appreciation as an antidote to a smooth process of harmonisation in the ECHR’s legal order in which the two opposing rationales of integration and diversification come to the fore in different forms. * Kent Law School, University of Kent, UK. 95 96 Theory and practice of harmonisation 2. The Margin of Appreciation as a ‘Policy Standard’ The concept of margin of appreciation, which has been developed in the jurisprudence of the ECHR, suggests discretion given to national authorities in...
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