Arai-Takahashi, Yutaka --- "Disharmony in the Process of Harmonisation? – The Analytical Account of the Strasbourg Court’s Variable Geometry of Decision-making Policy Based on the Margin of Appreciation Doctrine" [2012] ELECD 349; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 5

Section Title: Disharmony in the Process of Harmonisation? – The Analytical Account of the Strasbourg Court’s Variable Geometry of Decision-making Policy Based on the Margin of Appreciation Doctrine

Author(s): Arai-Takahashi, Yutaka

Number of pages: 20

Extract:

5. Disharmony in the process of
harmonisation? ­ The analytical
account of the Strasbourg Court's
variable geometry of
decision-making policy based on the
margin of appreciation doctrine
Yutaka Arai-Takahashi*

1. INTRODUCTION
This chapter seeks to provide an analytical account of the margin of appreciation
doctrine in the specific context of the harmonisation of the European Convention
on Human Rights (ECHR or Convention). It draws on the affinities between
the arguments concerning the margin of appreciation and theories on judicial
discretion while duly taking into account the structural difference between
the roles and remits of international and national judges. Its aim is to provide
a coherent theoretical explanation for the questions whether and if so, how,
this doctrine can be said to facilitate the harmonisation of the standards of the
ECHR in the enriched jurisprudence of the European Court of Human Rights
(the Strasbourg Court).
The chapter firstly undertakes a thorough dissection of the intrinsic nature
and underlying rationales of the margin of appreciation within the ECHR's
`constitutional' framework. Secondly, it seeks to identify distinct methodolo-
gies leaning toward harmonisation, which can be distilled and culled from the
Strasbourg Court's reasoning processes. Thirdly, it analyses the role of the
margin of appreciation as an antidote to a smooth process of harmonisation in
the ECHR's legal order in which the two opposing rationales of integration and
diversification come to the fore in different forms.




* Kent Law School, University of Kent, UK.

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