A Rationalized Version of the Doctrine of the Margin of Appreciation of the State

Abstract

In this paper I will focus on the Strasbourg Court as the international jurisdiction with a more consolidated doctrine with regard to the state approach in the interpretation and application of an international human rights convention. However, the arguments that I am going to develop in the text could also apply to other international human rights courts. Think of the Inter-American Court of Human Rights (CIDH). Although its structure, design and circumstances are different, academic interest in the possibilities of establishing the principle of subsidiarity and the doctrine of margin of appreciation in the reasoning of the IDH Court is growing. This growing interest in the doctrine of margin of appreciation in the inter-American system is the result of the evolution of both regional policy and the type of matters subject to the Court’s jurisdiction. As their jurisprudence moves towards the daily violation of human rights within stabilized democratic systems, questions about their legitimacy to interfere with the state’s criteria become more prominent. The question is, however, how this doctrine should be conceptualized in the context of this evolution in order to achieve an adequate balance between democracy and human rights protection in the region.