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