A MATTER OF APPRECIATION: THE MARGIN OF APPRECIATION IN THE INTER-AMERICAN COURT OF HUMAN RIGHTS

Any discussion on the future or reform of the inter-american human rights system must begin by looking at three essential points. First, a potential reform of the Inter-American Human Rights Commission with respect its role as a quasi-jurisdictional body and a possible review of its attributions as a political body and as body that actively participates in the jurisdictional activity of the system. Second, a structural reform of the Inter-American Court of Human Rights, with respect to the possibility of increasing its number of active judges and to create multiple sections within the court, with the possibility that the court may hear cases en banc or as a grand chamber, as an appeals division. Third, we must consider the possibility a potential resort by the court of the margin of appreciation, but not under the same dubious way as interpreted by the European Court of Human Rights, but under a conventionally adequate manner to avoid that the discretion available under the margin do not turn into an arbitrary power. Indeed, the American Convention on Human Rights creates relatively homogeneous bases for the States, which despite their differences share the elements of any democratic and republican state. But in spite of the similarities, each State acts according to its reality. The MOA is a form of deference to the State regarding tensions generated by its legal and social context. In this paper we will discuss to what extent the MOA is a sort of judicial deference, particularly in the judicial practice of international law of human rights in the European and the Inter-American systems, respectively (I). Finally, we will see what objections the national margin of appreciation has to face, and what steps should be taken to learn from the weaknesses of the European concept of MOA in order to adopt a conventional version of it, where there is room for deference towards States without emptying the ACHR (II).