Margin Of Appreciation In Echr Essay

3932 words - 16 pages

Importantly, the crux of this question mainly lies on a critical analysis on Harris’s statement on the application margin of appreciation under Art.2. and Art. 8 of European Convention on Human Rights (hereinafter referred to as ‘ECHR’). In examining Harris’s statement , it simply denotes that the application of the convention may often be varied because of the absence of consensus probably due to cultural relativism or pluralism. It has been propounded that human rights is universal , but it is inevitable for each country to adopt different practices and perception.
Although there were numerous movements in promoting the unity of the European, but it seems to have failed. Robertson indicates the unity principle’s outcome is less than what is desired. Thereby, as Murat notes, the court will invariably grant a leeway to the state in deciding the cases namely, the ‘Margin of appreciation’. This maxim owes it genesis from a French term ‘marge d’ appreciation’ that deemed as a doctrine which gives way to a state’s discretion in their governance.
More often than not, margin of appreciation doctrine applies when it comes to a question of ‘morality’. It seems to be a truism that Harris’s statement does reflect the court’s manoeuvre Notably, Jeffrey claims the more diversify of the laws on the state; a wider margin would be granted. As contended by Yutaka, a level of discretion will be allowed to the member states to consider any relevant circumstances. As a consequence, it can tentatively be concluded that doctrine could be one of the very efficient shields of the member states.
The paucity of European consensus thus results in some controversial issues left vaguely decided, for example, the right to abortion that comes under Art. 2. Of ECHR Besides, Art 8 of ECHR is particularly more contentious in relation to matters such as ‘sado-masochism’ or obscenity. This essay encompasses an analysis of the jurisprudence of the leading cases of both articles to assess the viability of Harris’s statement. Additionally, the criticisms of this doctrine will be drawn before reaching to the conclusion.

Generally, it is incontrovertible that the Art. 2 of ECHR governing the right to life is the absolute right, arguably subject to almost no limit. The leading case, McCann v U.K. , held if a violation of right to life is found, it can hardly be justified by the state, unless it falls under the exception of art.2(2) of the ECHR. On prima facie, it would be convincing to have espoused the margin of appreciation should never have been invoked if a violation of absolute rights hence should be subjected to greatest scrutiny.
On the other hand, that proposition begins to become more sceptical when the issues of euthanasia, abortion and the like start arising. In order to know whether the scantiness of consensus had led to the invasion of margin of appreciation, it is worth assessing on relevant cases accordingly as below.
Despite the court...

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