Exporting the margin of appreciation: Lessons for the Inter-American Court of Human Rights
Article by Professor Andreas Føllesdal in the International Journal of Constitutional Law Vo. 15(2).
What might the Inter-American Court of Human Rights (IACtHR) gain from a ‘judicial dialogue’ with the European Court of Human Rights (ECtHR) in the form of borrowing the ECtHR’s margin of appreciation doctrine? Arguably, a favorable interpretation of the vague margin of appreciation doctrine allows the ECtHR to provide both human rights protection and deference to domestic democratic decision-making. This may guide the IACtHR’s attempt to respect both the American Convention on Human Rights and its sovereign creators. In particular, the ECtHR’s Doctrine may illustrate how these regional courts can interact with states that violate the respective conventions after less than fully democratic processes—in the eyes of the courts. The same margin of appreciation doctrine may justify more or less sovereignty-invading stances by both the IACtHR and by the ECtHR, depending on to the different levels of entrenchment of a democratic culture and rule of law in the state of concern, and depending on the actual deliberations carried out in the particular case.