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Human Rights Between Law and Politics. The Margin of Appreciation in Post-National Contexts
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SYSNO ASEP 0478679 Document Type M - Monograph Chapter R&D Document Type Monograph Chapter Title The Paradox of Human Rights and the Role of the European Court of Human Rights in Keeping it Alive Author(s) Agha, Petr (USP-I) ORCID Source Title Human Rights Between Law and Politics. The Margin of Appreciation in Post-National Contexts. - Oxford : Hart Publishing, 2017 / Agha Petr - ISBN 978-1-84946-865-7 Pages s. 169-184 Number of pages 16 s. Number of pages 208 Publication form Print - P Language eng - English Country GB - United Kingdom Keywords human rights ; European Court of Human Rights ; Margin of Appreciation Doctrine Subject RIV AG - Legal Sciences OECD category Law R&D Projects GA13-30299S GA ČR - Czech Science Foundation (CSF) Institutional support USP-I - RVO:68378122 Annotation This chapter analyses human rights in post-national contexts and demonstrates, through the case law of the European Court of Human Rights, that the Margin of Appreciation doctrine is an essential part of human rights adjudication. Current approaches have tended to stress the instrumental value of the Margin of Appreciation, or to give it a complementary role within the principle of proportionality, while others have been wholly critical of it. In contradiction to these approaches this chapter shows that the doctrine is a genuinely normative principle capable of balancing conflicting values. It explores to what extent the tension between human rights and politics, embodied in the doctrine, might be understood as a mutually reinforcing interplay of variables rather than an entrenched separation. By linking the interpretation of the Margin of Appreciation doctrine to a broader conception of human rights, understood as complex political and moral norms, this chapter e argues that the doctrine can assist in the formulation of the common good in light of the requirements of the Convention. Workplace Institute of State and Law Contact Iveta Bůžková, iveta.buzkova@ilaw.cas.cz, Tel.: 221 990 714 Year of Publishing 2018
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