El margen de apreciación nacional en los tribunales regionales de derechos humanos: una aproximación consensualista/The Margin of Appreciation in the Case-Law of the Regional Human Rights Courts: a consensualist Approach

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...

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Bibliographic Details
Published in:Anuario español de derecho internacional 2013-01, Vol.29, p.217
Main Author: Vives, Francisco José Pascual
Format: Article
Language:Spanish
Subjects:
Courts
Human rights
International law
Sovereignty
Studies
Treason
Online Access:Get full text
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Summary: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. [PUBLICATION ABSTRACT]
ISSN:2173-3775
2254-660X