This analysis delves into the discernible inconsistencies characterizing the European Court of Human Rights’ (ECtHR) application of the margin of appreciation (MoA) doctrine concerning Article 9 of the European Convention on Human Rights.
Author
Bidisha Bandyopadhyay, Assistant Lecturer, Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana, India.
Summary
This intricate analysis delves into the discernible inconsistencies characterizing the European Court of Human Rights’ (ECtHR) application of the margin of appreciation (MoA) doctrine concerning Article 9 of the European Convention on Human Rights. The evident absence of explicit guidelines delineating the parameters of the margin, exemplified by the Kokkinakis case, results in a perplexing and contradictory implementation of this legal tool. The Court’s vacillation in standards of review, notably illustrated in Sahin’s and Lautsi’s cases, underscores a jurisprudential ambivalence in matters of religious expression.
Moreover, the Court’s oscillation in calibrating the margin, as observed in S.A.S v. France and Eweida and Others v. UK, raises valid concerns about judicial impartiality and potential predilections. The reliance on the absence of European consensus, as seen in cases like Dahlab v. Switzerland and Lautsi v. Italy, introduces an element of interpretive subjectivity that may undermine the robustness of human rights imperatives.
In light of these complexities, this analysis calls for a more lucid, principled and judicious application of the MoA doctrine by the ECtHR to ensure the consistent protection of fundamental human rights within the European legal framework.
Published in: Asian Journal of Legal Education
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