Este reporte fue elaborado por Oswaldo Ruiz-Chiriboga.
En la Revista Northwestern Journal of International Human Rights (Vol. 11, No. 1, 2012, pp. 28-82), se publicó un artículo de Pablo Contreras, titulado National Discretion and International Deference in the Restriction of Human Rights: A Comparison Between the Jurisprudence of the European and the Inter-American Court of Human Rights. Este es un extracto de la introducción del artículo:
“The emergence of human rights regional courts has led to challenges in defining the scope and normative content of universal human rights. After all, regional human rights treaties are accompanied by the possibility of geographical peculiarities in the enforcement of human rights obligations. International courts have the difficult task of reconciling—or justifying lack of reconciliation between—moral and normative differences within each region.
One of the most important doctrinal creations in this regard is the margin of appreciation (“MOA”), adopted by the European Court of Human Rights (“European Court”). The MOA doctrine is an interpretative criterion developed both to grant deference to States Parties so that they can regulate the content of rights and their restrictions, and to distribute power and levels of decision-making between domestic authorities and international courts. Although the concept “margin of appreciation” is not found anywhere in the text of the European Convention on Human Rights (“European Convention”) or its preparatory works, the MOA doctrine is now a fixed part of the European Court case law in the interpretation of rights and their limitations.
The Inter-American Court of Human Rights (hereinafter “Inter-American Court”), created under the American Convention on Human Rights3 (hereinafter “American Convention”), is another regional court. This Court has not yet developed a theory of deference to domestic authorities, which is mainly due to the number and type of cases decided. […]
This paper analyzes and compares the degree of international deference granted to domestic authorities by the two courts. Commentators have analyzed the MOA doctrine developed by the European Court, but national discretion at the Inter-American Court has been less studied, especially as a comparative exercise. Deference can be studied only by referring to the MOA doctrine. However, a more thoughtful approach should consider other levels of national discretion. This paper fills the gaps in the literature by, first providing an overview of the European MOA jurisprudence; second, by providing an account of the Inter-American Court’s jurisprudence on matters of national discretion and international deference; and third, by analyzing and comparing the jurisprudence of the European and the Inter-American courts on the restriction of human rights and the leeway granted to domestic authorities […]”.