
Contents
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I. Introduction I. Introduction
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II. Admitting Cases: Deference to National Courts and the Fourth Instance Formula II. Admitting Cases: Deference to National Courts and the Fourth Instance Formula
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A. The concept of the fourth instance formula A. The concept of the fourth instance formula
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B. Deference regarding the appreciation of the facts B. Deference regarding the appreciation of the facts
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C. Deference regarding the legality of the application of domestic laws by national courts C. Deference regarding the legality of the application of domestic laws by national courts
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D. Systemic preconditions for deference? D. Systemic preconditions for deference?
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III. Reviewing Judicial and Legislative Processes and the Struggle against Impunity III. Reviewing Judicial and Legislative Processes and the Struggle against Impunity
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A. Reviewing judicial processes to enforce a State’s obligation to ensure effective investigations A. Reviewing judicial processes to enforce a State’s obligation to ensure effective investigations
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B. Transitional justice and the review of internal measures B. Transitional justice and the review of internal measures
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IV. The Applicability of the Doctrine of the Margin of Appreciation in the Americas IV. The Applicability of the Doctrine of the Margin of Appreciation in the Americas
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A. Should the doctrine of the margin of appreciation be applied in the IAHRS? A. Should the doctrine of the margin of appreciation be applied in the IAHRS?
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B. The limited application of the margin of appreciation in the context of emergencies B. The limited application of the margin of appreciation in the context of emergencies
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C. The doctrine of the margin of appreciation and the interpretation of restrictions of rights C. The doctrine of the margin of appreciation and the interpretation of restrictions of rights
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D. Allowing for other forms of deference? D. Allowing for other forms of deference?
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1. Deference when assessing the scope of existing rights 1. Deference when assessing the scope of existing rights
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2. Deference when assessing the existence of rights not expressly provided for in human rights instruments 2. Deference when assessing the existence of rights not expressly provided for in human rights instruments
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3. Deference when assessing whether different and distinct treatments are justified 3. Deference when assessing whether different and distinct treatments are justified
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4. Deference regarding the implementation of economic, social and cultural rights 4. Deference regarding the implementation of economic, social and cultural rights
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V. Conclusions V. Conclusions
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16 Subsidiarity in the Americas: What Room Is There for Deference in the Inter-American System?
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Published:October 2014
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Abstract
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.
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