Nature of the Right and Type of Case

Andrew Legg

in The Margin of Appreciation in International Human Rights Law

Published in print July 2012 | ISBN: 9780199650453
Published online September 2012 | e-ISBN: 9780191741173 | DOI:

Series: Oxford Monographs in International Law

Nature of the Right and Type of Case

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It is often said that the nature of the right and the type of case are further factors for a margin of appreciation. This chapter explains that these matters are not in themselves grounds for deference but they do affect how much impact reasons for deference can have in the reasoning of the tribunals. In this way, they affect the reasoning of the margin of appreciation. It explores how different categories of rights will therefore demand more or less of reasons for a margin of appreciation. Absolute rights (life, prohibition of torture) give limited scope for the margin of appreciation; strong rights (fair trial, liberty, derogations) allow a little more scope for deference; qualified rights (privacy, freedoms of religion, assembly and speech, and non-discrimination) appear to anticipate a role for the margin of appreciation; and “weak” rights (property, education and free elections) give a wide measure of diversity to states.

Keywords: nature of the right; type of case; absolute rights; life; torture; qualified rights; privacy; freedom of speech; property rights

Chapter.  9820 words. 

Subjects: Public International Law

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