Faculté de science politique et de droit Centre d'études sur le droit international et la mondialisation (CÉDIM) Bannière


Subsidiarity in the Americas : What Room Is There for Deference in the Inter-American System ?

DUHAIME, Bernard. 2014. "Subsidiarity in the Americas : What Room Is There for Deference in the Inter-American System ?" dans Lukasz Gruszczynski et Wouter Werner (sous la dir.), Deference in International Courts and Tribunals : Standard of Review and Margin of Appreciation, Oxford.

Résumé du chapitre :
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.

Résumé de l’ouvrage collectif :
Rights and obligations of States are determined by rules of international law. Indirectly, however, they may be also controlled by specific legal methodologies used by international courts and tribunals when adjudicating matters involving States’ measures and actions—both standard of review and margin of appreciation are examples of such methodological devices. Courts use them as tools to determine the degree of deference that is granted to States in their implementation of international legal obligations. The applicable standard of review/margin of appreciation is rarely articulated in the pr ... More

Mots clés :
standard of review, margin of appreciation, deference, international courts, international adjudication

Bernard Duhaime, 12 décembre 2014

Bernard Duhaime