Emerging Voices: Freedom or Restraint? On the Comparison Between the European and Inter-American Human Rights Courts

by Lucas Barreiros

[Lucas E. Barreiros is a Professor of Public International Law and Coordinator of International Human Rights Law Masters Program at the University of Buenos Aires.]

While much attention has been paid to the differences and similarities between the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR) as well as to the dialogue between them [see here, here, here and here for examples], none of that attention has been devoted to comparing the one aspect of their work that best and most synthetically captures all that sets them apart – that is, the doctrines of “margin of appreciation” and “control of conventionality”. It is proposed here that more attention should be paid to the explanatory power of these two doctrines in understanding the different identities and diverging trajectories of the ECHR and the IACHR.

As known, the “margin of appreciation” doctrine was developed by the ECHR starting in its Handyside v. United Kingdom judgment. It has been understood to refer, as pointed out by Steven Greer, to “the room for manoeuvre that the Strasbourg institutions are prepared to accord to national authorities in fulfilling their obligations under the European Convention on Human Rights”. The rationale for allowing this margin of appreciation, as pointed out by the ECHR in Handyside when referring to the conditions set out in the Convention to lawfully restrict the freedom of expression, is that national authorities, “by reason of their direct and continuous contact with the vital forces of their countries (…) are in a better position than the international judge to give an opinion on the exact content of these requirements”.

For its part, the “control of conventionality” was first mentioned by the IACHR in its judgment in the Case of Almonacid Arellano et al v. Chile.The IACHR held that:

“(…) domestic judges and courts are bound to respect the rule of law, and therefore, they are bound to apply the provisions in force within the legal system. But when a State has ratified an international treaty such as the American Convention, its judges, as part of the State, are also bound by such Convention. This forces them to see that all the effects of the provisions embodied in the Convention are not adversely affected by the enforcement of laws which are contrary to its purpose and that have not had any legal effects since their inception. In other words, the Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.” (emphasis added).

It should be noted that there are two components to the doctrine – one deals with the responsibility of national authorities to ensure that the application of national legislation does not adversely affect the rights under the American Convention of Human Rights; the other, however, is the direct opposite of the “margin of appreciation” as it leaves no room for national authorities to conduct their own assessment and requires them to apply the interpretation of the IACHR.

At first glance, these doctrines appear to be concerned with the standard of review that each of these two tribunals applies when scrutinizing States’ compliance with human rights treaties and their deference to the decisions of national courts. However, they also capture, reveal or explain many other differences between the two regional human rights systems, including their philosophical and historical understanding of the human rights notion and the two relevant regional human rights treaties, how they conceive the role of international courts in the protection of human rights as well as their relationship with national courts, their perceptions about their own accountability and that of national governments, the power and legitimacy of each institution and, finally, how different procedural and budgetary questions influence the way in which both tribunals perform their role and strive for effectiveness. I will attempt to briefly illustrate the explanatory power of these doctrines by reference to a few of these differences.

The two doctrines can both be explained by, and shed light upon, the prevailing political conditions in each region as well as the political attitudes of national governments towards the two courts. In particular, the “control of conventionality” doctrine may be understood as the response of the IACHR to a number of political challenges that include weak democracies and a tradition of authoritarian governments in Latin America, limited accountability of national governments, a weak record of compliance with its judgments and a general lack of support and, more recently, challenges to the authority of the Inter-American system of human rights spearheaded by some States in the region. In this scenario, the IACHR does not appear to trust national governments and is unwilling to afford them any flexibility in the interpretation and application of their human rights obligations. The fact that the IACHR sees itself as capable of occupying this position of authority – with vague normative foundations in the American Convention of Human Rights – also points to its limited accountability. Whether the weakness of the IACHR is best addressed by an attempt to strengthen its grip over those that defy it is a difficult question. For its part, the ECHR reliance on the “margin of appreciation” doctrine suggests mutual trust between the Court and national governments and only appears to be possible in the more robustly democratic political environment of the European Union.

There are, however, more material and formal explanations for the two doctrines. Both budgetary and procedural reasons account for the significantly smaller docket of the IACHR when compared to that of the ECHR. The 2014 budget of the IACHR was $ 2,661,100.- and that of the ECHR was € 67,650,400.00.- and, whereas Protocol 11 to the European Convention of Human Rights allows direct access by individuals to the ECHR (resulting, for example, in a total of 128,100 pending cases at the end of 2012), only the Inter-American Commission of Human Rights may decide to present a case before the IACHR (in 2012, the IACHR received 12 new cases and issued 21 judgments). In this context, it is easy to understand why the ECHR is willing to afford national authorities some margin of appreciation – as it is much more likely that it will later be able to review such decision. Whereas the doctrine was developed before the entry into force of Protocol 11, the European Commission had always referred, perhaps for political or budgetary reasons, a much larger number of cases to the Court than its American counterpart ever did – at a rate of over 1,100 a year from 1959 until 1998. For these purposes, Protocol 11 formalized and intensified a trend which was already apparent in the comparison between the two systems. In contrast, the “control of conventionality” doctrine of the IACHR may be understood as an effort on the part of the Court to extend the effect of the few judgments that it adopts by attempting to force national authorities to conform to them, a necessity considering how unlikely it is for a case to reach the IACHR.

Adopting this perspective offers distinct focal points to think about the differences between the IACHR and the ECHR as well as new insights about the rationale underlying each of these two doctrines. Most importantly, however, contrasting both doctrines helps direct attention to the divergent trajectories that the two courts are currently following and to think about their implications for the future.

http://opiniojuris.org/2014/08/11/emerging-voices-freedom-restraint-comparison-european-inter-american-human-rights-courts/

4 Responses

  1. Very interesting post. A couple of questions/thoughts to continue debating:

    1. Are the doctrines linked to compliance? That is to say, is leaving a wider “margin of appreciation” to States more effective in seeing that they comply with the ruling?
    2. Are the doctrines a product of each Court’s docket of cases? More precisely, hasn’t the IACtHR dealt with systematic violations of human rights whislt its European counterpart has been engaged on a more case-by-case analysis?

  2. Thank you for your feedback. As to 1, I think it is an interesting idea but a very hard one to prove as it would be very hard to isolate that variable from many others that may influence compliance. That being said, one could speculate that the margin of appreciation establishes a relationship of trust that may, in turn, make governments more willing to comply with an adverse ruling – perhaps also because it is clear that the impact will be limited to that case and that different action may be taken on others.

    As for 2, I think it goes back to the question of how many cases reach each court. If the IACtHR continued dealing with systematic violations but were able to issue a judgment in a significant number of the cases that constitute that pattern it would perhaps not see a need to attempt to extend the effect of its judgments through the control of conventionality doctrine.

  3. Dear Lucas,

    Thank you for this interesting post. I agree that the very different political, institutional and historical contexts in Europe and in the Americas shed light on the evolution of these two legal doctrines. However, there are suggestions in recent case law that the Inter-American Court is incorporating some aspects of the margin of appreciation into the control of conventionality doctrine.

    The two cases I have in mind are Gelman v. Uruguay, Supervision of Compliance with Judgment (20 March 2013), paras. 70-71 in which the Court favorably refers to the principles of subsidiary and complimentarity as part of conventionality control, and Mendoza v. Argentina, Judgment of May 14, 2013, in which the Court at paras. 323-324 approves of the conventionality control review conducted by domestic judges even though that review does not appear to strictly follow the IACtHR’s case law.

    I would be interested in your thoughts on whether the two doctrines are likely to converge over time.

  4. Dear Professor Helfer,

    Thank you for your thoughts on this matter. I was very fortunate to be your student a number of years ago and I appreciate you taking the time to think about my ideas.

    While I agree that the language employed by the IACHR in these two cases is more nuanced, I would not read it as an approach towards the margin of appreciation.

    In my opinion, the Gelman case stands generally quite apart from the spirit of the margin of appreciation doctrine. In its judgment the Court actually dismissed very substantive evidence that the national authorities were acting as a result of “their direct and continuous contact with the vital forces of their countries”, which had twiced expressed their will. Of course, some might agree with the Court that the subject matter and the requirements were not susceptible to national appreciation but, still, the Court does not give much deference to the decision of national authorities in the case.

    Now, I read the reference to complementarity and subsidiarity (in the Supervision of Compliance decision and elsewhere) as a reference to the first part of the control of conventionality doctrine and the one more cleary established in human rights treaties – that is, the obligation of national authorities to ensure that domestic law and judicial decisions are compatible with international human rights obligations as a way of discharging their obligation to “ensure … free and full exercise” of the rights. That control, however, may allow national authorities to put forward their own interpretation of the rights and have some margin of appreciation or be understood to require a faithful application of the interpretation provided by the international court. I would agree that the IACHR and the ECHR share their understanding that national authorities have a role and an obligation but would argue that they differ on their discretion when discharging it. Put differently, the reference to “complementarity” and “subsidiarity” by the IACHR in no way restric it from arguing that both should be undertaken taking into account “the interpretation (…) made by the Inter-American Court, which is the ultimate interpreter of the American Convention”.

    With regards to Mendoza, I would not agree that the Court “approves” the conventionality control conduct by Argentina’s Supreme Court. The language is more limited as the Court merely indicates that it “assesses positively” the judgment but then goes on to point out that despite the findings by the judgment that the law in question violated several articles of the ACHR, Argentina must take a number of steps (including adapting its legal framework) to comply with international standards, leaving apparently little margin of appreciation to national authorities.

    More generally, I would think -going back to the main point of my argument- that the likelihood of the IACHR converging towards the “margin of appreciation” doctrine very much depends on its relationship with States, their mutual trust and accountability and the size of its docket. It is not looking as a very bright prospect at the moment, but stranger things have happened.

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