Comparing Diverse Approaches to the Margin of Appreciation: The Case of the European and the Inter-American Court of Human Rights

24 Pages Posted: 11 Mar 2014

See all articles by Gonzalo Candia

Gonzalo Candia

Pontificia Universidad Católica de Chile, Facultad de Derecho

Date Written: March 9, 2014

Abstract

The European Court of Human Rights and the Inter-American Court of Human Rights have different approaches at the time of applying the margin of appreciation in cases involving the lack of regional consensus. While the European court shows a degree of discretion to states’ policies in areas of social disagreement, the Inter-American court does not. This is grounded both in history and politics. In this respect, the European court – with all its inconsistencies – has always looked at itself as a supranational tribunal with subsidiary jurisdiction. On the contrary, the Inter-American court, by adopting an aggressive standard of review, ignores the need of judicial deference. This is consistent with the desire of many academic and scholars who seek to transform this tribunal into the new constitutional court of the Americas. In this context, the margin of appreciation has little to say.

Keywords: European Court of Human Rights, Inter-American Court of Human Rights, Margin of Appreciation, Proportionality, Judicial Review, Deference

Suggested Citation

Candia, Gonzalo, Comparing Diverse Approaches to the Margin of Appreciation: The Case of the European and the Inter-American Court of Human Rights (March 9, 2014). Available at SSRN: https://ssrn.com/abstract=2406705 or http://dx.doi.org/10.2139/ssrn.2406705

Gonzalo Candia (Contact Author)

Pontificia Universidad Católica de Chile, Facultad de Derecho ( email )

Av Libertador Bernardo O Higgins 340
Facultad de Derecho
Santiago de Chile, 8331150
Chile
56-2-2354 2964 (Phone)

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