Authors

• Yaser Amin Roaya
• Seyed Fazlollah Mousavi

Abstract

The "margin of appreciation" doctrine in Europe is implemented to
respect the states' sovereignty, to consider national interests of each member state and in order
to protect the provisions of the European
Convention on Human Rights. Based on this theory, some authority
and discretion are reserved for the member states that give them freedom in interpreting the
provisions of European Convention. This allows the member states to protect their essential
interests while they remain committed to implementing the provisions of the Convention. It is
important to note that according to the approach taken by the European Court of Human Rights in
relation to the “fundamental human rights”, the states that became part of the European Convention
do not have the permission to suspend or limit these rights at their discretion because member
states are not considered eligible for this action. Since the "right of hijab" is an example of the
“right to freedom of religion" and according to the international human rights, it is considered as
a fundamental human right, so the member states do not have the discretion and the authority to put
restrictions on it. However, it seems that the European Court of Human Rights has faced a
contradiction in relation to this right by recognizing the right for each member state to limit hijab at their discretion, regardless of the nature of this right and the required conditions for application of the doctrine.

Keywords

• Hijab
• Religious Freedom
• Essential Interests
• Margin of Appreciation Doctrine
• European Convention on Human Rights