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33 Harv. Hum. Rts. J. 57 (2020)
International Criminal Justice, Legal Pluralism, and the Margin of Appreciation Lessons from the European Convention on Human Rights

handle is hein.journals/hhrj33 and id is 63 raw text is: 












        International Criminal Justice, Legal

   Pluralism, and the Margin of Appreciation

      Lessons from the European Convention

                      on Human Rights




                            Fr6d6ric M6gret1


Abstract: This Article explores the potential of the margin of appreciation
to conceptualize the pluralism of international criminal justice. A growing
debate in international criminal justice concerns the extent to which it can
and ought to be conceived pluralistically. That debate has often remained
theoretical, however, lacking a broad understanding of how that pluralism
could be justified and implemented in international law. This Article ar-
gues that the notion of the margin of appreciation, as developed in the
jurisprudence of the European Court of Human Rights, makes an impor-
tant contribution to our understanding of the potential pluralism of inter-
national criminal justice. Developed as a tool to reconcile European human
rights principles with the diversity of European societies, the margin of
appreciation provides arguments to better justify pluralism as both prag-
matic and principled. Moreover, the margin of appreciation provides gui-
dance in considering how far domestic criminal justice systems should stray
from central norms of international criminal justice. The article concludes
with some thoughts on the way forward in forging a pluralistic interna-
tional criminal justice jurisprudence that does not sacrifice a universalist
commitment.

                          TABLE OF CONTENTS

The Case for Pluralism: The View from the Margin of
        Appreciationv  .........................................       67
   The Merely Pragmatic Case for Pluralism      ..................     68



   1. Full Professor and Dawson Scholar, Faculty of Law, McGill University. I am grateful to partici-
pants of the cosmopolitan pluralism and international criminal justice workshop at Leeds University on
January 10-11, 2019, and for comments and feedback from Flies van Sliedregt, Paul Schiff Berman,
Alex Green, and Lachezar Yanev on a previous version of this paper. Thank you to Wanshu Cong for
invaluable assistance. Funding for this research was provided by the Social Sciences and Humanities
Research Council of Canada via the Canadian Partnership for International Justice.

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