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The Margin of Appreciation, subsidiarity and global challenges to democracy

Accepted version
Peer-reviewed

Type

Article

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Abstract

Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and, therefore, any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should, therefore, be secondary confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this essay is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.

Description

Keywords

48 Law and Legal Studies, 4807 Public Law, 16 Peace, Justice and Strong Institutions

Journal Title

Journal of International Dispute Settlement

Conference Name

Journal ISSN

2040-3585
2040-3593

Volume Title

9

Publisher

Oxford University Press (OUP)