Abstract

PINTOS CASANAS, Emanuel. National Margin of Appreciation. The Apparent Conflict with Conventionality Control. Rev. Derecho [online]. 2023, n.28, e3114.  Epub Dec 01, 2023. ISSN 1510-3714.  https://doi.org/10.22235/rd28.3114.

This work aims to reconcile the apparent contradiction between the doctrine of the national margin of appreciation and the increasing impact of pronouncements by the Inter-American Court of Human Rights through the construction of the notions of “margin of appreciation within the conventionality control” and “margin of appreciation post-sanction”. Both clearly differentiated moments delineate spaces of discretion and respective controls between the States and the Inter-American Court. To give content to these notions, the characteristics of the Inter-American human rights protection system and its expansive process in recent decades will be analyzed. The concept of the national margin of appreciation will be examined in a comparative perspective, considering both the doctrine and jurisprudence of the European Court of Human Rights and the Inter-American Court of Human Rights, highlighting their similarities and differences. Finally, reflection will be made on the two proposed notions in which a margin of appreciation in favor of the States could be enabled.

Keywords : international law of human rights; conventionality control; national margin of appreciation; deference principle.

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