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31 N.Y.U. J. Int'l L. & Pol. 843 (1998-1999)
Margin of Appreciation, Consensus, and Universal Standards

handle is hein.journals/nyuilp31 and id is 851 raw text is: MARGIN OF APPRECIATION, CONSENSUS, AND UNIVERSAL STANDARDS EYAL BENvENIsI* I. INTRODUCTION: MARGIN OF APPRECIATION vs. UNrvERSAUSM Judgments of the European Court of Human Rights (ECHR) and of the Inter-American Court of Human Rights (IACHR) and views of the Human Rights Committee (HRC) resonate in numerous national decisions concerning human rights issues. Their jurisprudence has become an indelible source of inspiration for judges in national courts around the globe.' Prominent among these international human rights organs is the ECHR, whose jurisprudence enlightens not only national judges but also judges and committee members of the other international human rights-organs.2 Thejudicial output of the ECHR and the other international bodies carries the promise of setting universal standards for the protection and promotion of human rights. These universal aspirations are, to a large extent, compro- mised by the doctrine of margin of appreciation. This doc- trine, which permeates the jurisprudence of the ECHR,3 is based on the notion that each society is entitled to certain lati- tude in resolving the inherent conflicts between individual rights and national interests or among different moral convic- * Visiting Professor of Law, Harvard University; Professor of Law, The Hebrew University ofJerusalem, Faculty of Law. I thank Kathryn Comerford for her comments on a previous draft. Thanks are also due to the Israel Science Foundation for a grant supporting the research on which this note is based. 1. See Anne-Marie Slaughter, A Typology of Transjudidal Corninunications 29 U. RiCH. L REV. 99 (1994); Eyal Benvenisti, National Courts and the Interna- tional Law on Minority Rights, 2 AusTRIuN REv. INT'L & EUR. L 1 (1997). 2. On the influence of the ECHR's jurisprudence on the IACHR and the HRC, see J.G. MERis, THE D EvELOPhiaNT OF INTERNATIomi. L%%w BY EUROPEAN COURT OF HUmAN RIGHTS 17-21 (1993). 3. For comprehensive analyses of the margin of appreciation doctrine, see HowARD C. YouRow, THE MARGIN OF APPRECIATON DOCTRINE IN THE ID: NAMICS OF EUROPEAN HuMN RIGHTS JURISPRUDENCE (1996); see also Eva Brems, The Margin of Appreiation Doctrine in the Case-Law of the European Court of Human Rights 56 ZA6RV (HEmELBERG J. INT'L L) 240 (1996). 843 Imaged with the Permission of N.Y.U. Journal of International Law and Politics

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