Follesdal, Andreas: In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. (Type: Journal Article | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation)@article{RN52180,Member states of the Council of Europe subject themselves to judicial human rights review by the European Court of Human Rights. That Court in turn defers sometimes to the judgments of domestic courts about compliance, granting them a margin of discretion, more so when it sees a European consensus. This complex practice can be justified based on arguments about comparative epistemic expertise, respect for democratic decision making, and the need to avoid undue judicial discretion – juristocracy. While this account supports the general practice, it points to certain weaknesses and areas of improvement: the rules to nominate and elect judges and members of the Registry of the Court, the doctrine of the margin of appreciation, and the rationales for a European consensus. |
Follesdal, Andreas; Ulfstein, Geir: Copenhagen – much ado about little?. In: EJIL talk, no. April 14, 2018, 2018. (Type: Journal Article | Abstract | Links | Tags: debate, Human Rights, Margin of Appreciation)@article{RN50996,The Ministers of the Council of Europe adopted the ‘Copenhagen Declaration’ Friday April 13 concerning the perpetual reform of the European Human Rights System. … On the face of it not much is new in the Declaration. It is still interesting, not least for what the Ministers agreed not to include from the draft circulated by the hosts April 5. The Danish draft urged states to reign in the Court by a dramatic extension of the ‘margin of appreciation,’ and by more control through political ‘dialogue.’ The robust rejection of these proposals also show us how the Court is independent yet accountable, to states committed both to protect human rights in Europe, and to complex conceptions of sovereignty and subsidiarity. |
Follesdal, Andreas; Tsereteli, Nino: The margin of appreciation in Europe and beyond – Special Issue. 2016. (Type: Book | Abstract | Tags: European Court of Human Rights, Human Rights, International courts, Margin of Appreciation, Special issues)@book{RN50638,Is the margin of appreciation doctrine of the European Court of Human Rights (ECtHR) a promising model of deference by a regional human rights court towards democratic states? Or does this doctrine amount to an abdication by such courts from their proper tasks of protecting human rights against violations by states? This special section contributes to the ongoing scholarly debate about the margin of appreciation doctrine, originally developed by the ECtHR. It also explores the emergence of similar doctrines of deference in human rights adjudication outside Europe. The four articles also raise issues relevant for a broader debate about legitimacy and effectiveness of international courts. The authors cover a number of courts, well-established as well as relatively young ones, operating in different legal and political contexts. It allows reflecting on common as well as courtspecific reasons for exercising or avoiding deference. |
Public Debate
| : In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. |
| : Copenhagen – much ado about little?. In: EJIL talk, no. April 14, 2018, 2018. |
| : The margin of appreciation in Europe and beyond – Special Issue. 2016. |