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 […]”.
