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
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
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