El margen de apreciación nacional en los tribunales regionales de derechos humanos: una aproximación consensualista

Abstract

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The paper examines the concept of margin of appreciation invoked by the European Court of Human Rights and the Interamerican Court of Human Rights, from a consensualist approach based on Public international Law. The margin of appreciation is an indeterminate legal concept whose application depends on several intrinsic and extrinsic factors. In this context, the consensus, one of these extrinsic factors, produces an integrating effect on the regional human rights jurisprudence. The development of fundamental rights in Europe and America is accompanied by a consensus between States parties to both regional subsystems. Without the necessary consensus generalis, which is confirmed through State practice, the evolutive interpretation of the human rights treaties becomes more complex and regional human rights case-law turns out to be more deferential towards State sovereignty. The consensus allows to explain, from Public international Law, the application of the margin of appreciation by the European Court of Human Rights and the Interamerican Court of Human Rights.

Keywords

European Court of Human Rights, Interamerican Court of Human Rights, margin of appreciation, evolutive interpretation, consensus, regional subsystems of international Law