4 June 2018

Dothan edited a Special Issue

Shai Dothan Associate Professor Shai Dothan (iCourts) served as a guest editor for a special issue at the Journal of International Dispute Settlement. The special issue just published is titled: "Margin of Appreciation and Democracy: Human Rights and Deference to Political Bodies"

The 'margin of appreciation' is one of the doctrines most often used by the European Court of Human Rights (ECtHR), but its use is far from straightforward. The court has to determine whether the margin of appreciation—the deference granted to the state—will be broad or narrow. This decision relies on diverse factors ranging from the type of violation and the interests involved to the quality of the state's decision-making bodies. Yet the court's decision doesn't end there. The court then turns to deciding whether the actions of the state fall inside the margin of appreciation it circumscribed. This is also a decision involving judicial discretion.

ECtHR intervention is often challenged on the ground that the court is not an elected or a representative body. Indeed, one of the rationales behind the margin of appreciation is to defer to states that are governed by majority rule. Yet there are good answers to this challenge. Sometimes, states fail to properly represent all the interests involved. Even functioning democracies can suffer from democratic failures—situations in which the individuals affected by the state's actions do not receive a fair share of the political power. Furthermore, some rights' violations may justify ECtHR intervention despite its counter-majoritarian nature. The liberal ideal doesn't constitute only decision-making by representative bodies. It must rest on respect and protection of fundamental human rights.

To this normative analysis, a political dimension must be added: there are limits to what the ECHR can do without facing political backlash. The ECHR, as well as other human rights bodies, developed intricate doctrinal solutions to this challenge.

In a conference that took place in iCourts on 13 April 2016 these themes were discussed by a group of leading scholars. The special issue at the Journal of International Dispute Settlement collects some of the contributions from that conference. 

The special issue includes the following papers: 

  1. Shai Dothan, Margin of Appreciation and Democracy: Human Rights and Deference to Political Bodies
  2. Richard H. Pildes, Supranational Courts and The Law of Democracy: The European Court of Human Rights
  3. Yuval Shany, All Roads Lead to Strasbourg?: Application of the Margin of Appreciation Doctrine by the European Court of Human Rights and the UN Human Rights Committee
  4. Mikael Rask Madsen, Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?
  5. Oddný Mjöll Arnardóttir, The Brighton Aftermath and the Changing Role of the European Court of Human Rights
  6. Eyal Benvenisti, The Margin of Appreciation, Subsidiarity and Global Challenges to Democracy

To read Dothan's introduction to the symposium issue