The Margin of Appreciation, subsidiarity and global challenges to democracy

Eyal Benvenisti*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

9 Scopus citations


Much of the academic debate concerning the function of the Margin of Appreciation (MoA) doctrine is based on the assumption that democracy works more or less well and, therefore, any impugned domestic policy merits respect. The role of the European Court of Human Rights (ECtHR) should, therefore, be secondary confined to the rare situations when the democratic process fails and the national courts refrain from rescuing it. This debate assumes that the causes of democratic failures are internal, or that domestic decision-making processes are sufficiently resilient to outside pressure. This is obviously wrong, and more so today than in any other time in the history of the modern state. The aim of this essay is to explore these external challenges to democracy and their implications to the role of the ECtHR in protecting human rights. These responses demonstrate the limits of the MoA doctrine and highlight its alternative, subsidiarity, as a superior doctrine to manage the interface between the domestic and the European components of the European human rights regime.

Original languageEnglish
Pages (from-to)240-253
Number of pages14
JournalJournal of International Dispute Settlement
Issue number2
StatePublished - 1 May 2018


FundersFunder number
European Research Council323323


    Dive into the research topics of 'The Margin of Appreciation, subsidiarity and global challenges to democracy'. Together they form a unique fingerprint.

    Cite this