Margin of Appreciation: en kulturrelativistisk doktrin?
Independent thesis Advanced level (degree of Master (Two Years)), 20 credits / 30 HE creditsStudent thesis
With the collapse of the Soviet Union and the 9/11 attacks, the landscape of the freedom of religion has changed. The issues now facing freedom of religion varies greatly from the issues that the drafters of the universal declaration of human rights faced after World War II.
In the light of the new issues that States face in the intersection of religion and societal interest, scholars have criticized the European Court of Human Rights to give too much leeway to the States in determining how the human rights should be implemented, by using the doctrine of margin of appreciation. Critics of the margin of appreciation claim that it is based on culture relativism and that the doctrine undermines the universality of the human rights. In order to decide if the margin of appreciation has indeed led to a relativization of the human rights I compared it to the jurisprudence of the UN Human Rights Committee and its use of the Syracusa principles. My conclusion is that the jurisprudence of the European Court of Human Rights cannot be considered to be based on culture relativism. The jurisprudence of the UN Human Rights Committee is not entirely universal given that the contracting states can make reservation to articles in the ICCPR, which excludes the UN Committee’s jurisdiction of that specific provision in the treaty. Both the European Court and the UN Comittee has to balance their jurisdiction with sovereignty of the its member states and therefore it is inevitable that some leeway must be given to the member states,
First of all, to decide whether the margin of appreciation is a sympton of culture relativity in a specific case, the Europan Court has to improve their way of describing and justifying how the margin of appreciation is used. Secondly, I will discuss the necessity to review the relationship between universalism and culture relativism in order to better understand international human rights law.
Place, publisher, year, edition, pages
2015. , 68 p.
IdentifiersURN: urn:nbn:se:uu:diva-254369OAI: oai:DiVA.org:uu-254369DiVA: diva2:818030
Subject / course
Master Programme in Human Rights
Klamberg, Mark, docent
Namli, Elena, professor