Fundamentos filosóficos de la doctrina del margen de apreciación del Tribunal Europeo de Derechos Humanos

Abstract

The purpose of this research is to elucidate the philosophical foundations of the Margin of Appreciation Doctrine of the European Court of Human Rights. For this, two basic problems are distinguished: the conceptual problem and the justifiable problem. The answer to the first problem, is to construct a concept starting from its context of application, which is delimited by three criteria: the absence of consensus and common values, the identification of the fundamental rights for a democratic and pluralist society and the identification of formal, structural and textual elements that affect the magnitude of the Margin of Appreciation. Conceptually these three criteria are delimited and the importance of the latter is shown, particularly the distinction between absolute and non-absolute rights and the difference between limitations and exceptions. The answer to the second problem seeks to elucidate a justification of this doctrine, articulating the above three criteria from the value pluralism, which allows to counter the accusation of relativism that weighs on this doctrine, based on the idea of the objectivity of the values that the value pluralism holds. The aim here is to show that the Margin of Appreciation doctrine would not be an obstacle to the construction of a common understanding of the rights and freedoms enshrined in the Convention, considering the limitations that Member States can make to them. In light of these limitations, the doctrine is conceived as an interpretative principle of the rights of the Convention containing a limitation clause, aimed at achieving some flexibility in the process of implementation of these rights by the Member States, seeking to preserve their contextual differences, but, at the same time, the ethos of the Convention, expressed in the structural values of democracy and pluralism. The aim of the Court is therefore to guarantee a composable or practicable system of rights and freedoms in a diverse Europe.