Differences between criminal theory and an international human rights law approach

This chapter compares the underlying reasoning of European Convention on Human Rights (ECHR) criminalization cases with existing criminal theory. It concludes that international human rights law does not merely reframe existing criminal theory within human rights terms. The chapter identifies four major structural differences: (i) the use of a vertical conception of rights in international human rights law as opposed to horizontal rights in criminal theory; (ii) the use of dignity, vulnerability, and pluralism as separable concepts in international human rights law; (iii) the use by international human rights law of multi-factorial reasoning, as opposed to the more restricted “single gateway” approach of theorists such as Feinberg; and (iv) the influence of existing criminalization practice through the margin of appreciation.