The National Margin of Appreciation Doctrine: In Search of a Balance between Democracy and Rights in the International Sphere

Marisa Iglesias Vila 

Pompeu Fabra University - Law Department
December 20, 2013

A. Amaral and J. H. Ribeiro Roriz (eds.), New Issues in International Law, Forthcoming 
Abstract:      

The paper critically examines how the margin of appreciation doctrine has been applied in the jurisprudence of the ECtHR regarding religious symbols in public schools. It aims to distinguish two versions of this doctrine, a voluntarist version of the margin of appreciation (VVM) and a rationalized version of the doctrine (RVM), comparing their features and impact on the ECtHR’s reasoning. It then focuses on the dynamics of a RVM, its argumentative steps and requirements to underline the most important flaws in the Court’s case law on religious symbols. The paper argues that the use of the RVM as a general hermeneutic tool in the application of the Convention is the most suitable way, on the one hand, for the ECtHR to legitimize its judicial function in the face of the current European religious pluralism and, on the other hand, for it to obtain the axiological equilibrium between rights and democracy that is inherent to the ECHR itself.

Number of Pages in PDF File: 32

Keywords: Margin of Appreciation, Convention Rights, Democracy, Religious Pluralism, International Courts

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2370311