Subsidiarity in the Americas
Subsidiarity in the Americas
What Room Is There for Deference in the Inter-American System?
Chapter 16 investigates the extent to which the IACHR and IACtHR express deference to States in their implementation of the American Convention of Human Rights. In this context, the chapter identifies different mechanisms that serve this aim, including the fourth instance formula and the margin of appreciation doctrine. The chapter notes that the Inter-American institutions have been rather reluctant to defer to domestic legislative, administrative and judicial institutions when assessing human rights violations cases. According to Duhaime, part of the System’s hesitation to defer seems to come from the limited capacity that national agencies have often shown in effectively protecting human rights in the region. It adds that as the Hemisphere progresses towards democracy and consolidates its institutions and practices towards States governed by the rule of law (with effective judicial authorities), one could expect a greater use of the margin of appreciation doctrine by both the Commission and Court.
Keywords: IACHR, IACtHR, deference, American Convention of Human Rights, margin of appreciation, fourth instance formula
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