A margin for the margin of appreciation: Deference in the Inter-American Court of Human Rights

Abstract

Abstract Despite its extended criticism, is there any room for the margin of appreciation in the Inter-American Human Rights System? The article claims there is, if we ground the doctrine in the principle of subsidiarity. This principle gives a solid foundation to the margin of appreciation and shows that the doctrine does not respond to an exclusively European reality. It also helps to identify the factors that determine the width of the margin given to the states and how they interact with each other: the absence or presence of absolute rights, the quality of the domestic judiciary, and the need for a closer participation of the community and the expertise of the state. These conditions are analyzed in the light of the case law of the inter-American human rights system. The article explores the proper role of the margin of appreciation within human rights adjudication and its compatibility with the doctrine of conventionality control developed by the Inter-American Court of Human Rights.