Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights

Human Rights Law Review, Volume 18, Issue 3, 1 September 2018, Pages 495–515

21 Pages Posted: 22 Sep 2018

See all articles by Janneke Gerards

Janneke Gerards

Utrecht University - Faculty of Law; Institute for Jurisprudence, Constitutional and Administrative Law

Date Written: August 9, 2018

Abstract

Fundamental rights standards in Europe diverge as a result of differences in legal traditions, constitutional values and historical developments. The European Court of Human Rights therefore faces the challenge of having to balance the need for uniform and effective rights protection with respect for diversity. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This article shows, however, that the Court’s application of the doctrine has made it into a rather empty rhetorical device. This appears to be different for the Court’s use of incrementalism, which increasingly appears to have replaced the margin of appreciation doctrine as an instrument to reconcile European protection of fundamental rights and national diversity. The article concludes by showing how the Court could further benefit from this strategy of incrementalism, while still maintaining a role for the margin of appreciation doctrine.

Keywords: fundamental rights, European Convention of Human Rights (ECHR), European Court of Human Rights (ECtHR), diversity, margin of appreciation doctrine, incrementalism

Suggested Citation

Gerards, Janneke, Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights (August 9, 2018). Human Rights Law Review, Volume 18, Issue 3, 1 September 2018, Pages 495–515, Available at SSRN: https://ssrn.com/abstract=3241940

Janneke Gerards (Contact Author)

Utrecht University - Faculty of Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

Institute for Jurisprudence, Constitutional and Administrative Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

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