The conventionality control and the Fontevecchia case: Is the margin of appreciation the panacea?

Abstract

In the paper I comment on some of Claudina Orunesu’s claims in her article “Conventionality control and international judicial supremacy”. Orunesu offers a critical analysis of how the Inter-American Court of Human Rights justifies and develops its conventionality control principle. She draws on the Argentine Supreme Court judgment in the Fontevecchia case to support her claim that the I/A Court should combine the requirement of an internal conventionality control with the European doctrine of the national margin of appreciation. Taking on board the Fontevecchia holding, I engage in a critical review of her proposal by arguing that a reasonable margin of appreciation doctrine would lead to questioning the reasoning of the Argentine Supreme Court in this case. Instead of assuming an adversarial rationale that put the focus on democratic concerns, I suggest approaching the Inter-American institutional framework in cooperative and systemic terms. Once we follow a cooperative logic, deference to national authorities is generally justified when domestic institutions are better situated than an international court for decision-making on human rights. However, the strength of the better situated argument is conditioned on the state’s reliability as a cooperative actor in the Inter-American system. And this reliability is in turn conditioned on the state’s demonstrating its capacity to meet its cooperative duties within the framework of the Convention. In the paper I focus on three such cooperative responsibilities: the duty of impartiality, the duty to adopt a culture of justification, and the duty to embrace a conventional perspective.