Margins of Appreciation: Cultural Relativity and the European Court of Human Rights in the Post-Cold War Era

Abstract

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Subsidiarity to the Rescue for the European Courts? Resolving Tensions Between the Margin of Appreciation and Human Rights Protection

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“…In this way, the margin of appreciation can be understood as a form of tenable ethical decentralisation rather than human rights relativism. 131 It can be understood as a form of decentralisation that allows for the mediation of the tension in international human rights between a vision of substantively universal values for protecting human dignity and the imperative of concomitantly respecting diversity and freedom of human cultures so that the universalism of human rights does not translate into normatively requiring oppressive and gratuitous homogeneity or uniformity. 132 125 But the inherent danger with invoking the margin of appreciation is that it is built on an assumption that when limiting fundamental rights, national authorities will do so in a manner that protects the minimum human guarantees that are off ered by the Convention.…”