Disadvantaged groups and doctrine of margin of national appreciation

Abstract

Since the judgment of the Inter-American Court of Human Rights in the “case of Dominican and Haitian people with the Dominican Republic” it has been discussed with greater intensity if the Inter-American Court should begin to use the doctrine of the margin of appreciation in the inter-American space. At this address writers write about the authority and legitimacy of the Inter-American Court - and international courts in general - to resolve difficult cases and condemn states for violation of human rights contemplated in the American Convention on Human Rights or in the respective international treaty. Other authors advocate the incorporation of the doctrine of the margin of appreciation by the Inter-American Court as a way to better articulate the inter-American political community.

After reviewing the doctrinal positions in this regard, I will argue that the use of the doctrine of the margin of appreciation in cases of multicultural type may imply the invisibility of existing tensions within national communities, where many times, the culture and practices of The minorities indicated are belittled by the majority or hegemonic culture. This is the case of the indigenous and migrant population in the American context, so the use of the margin of appreciation doctrine in this type of cases may imply that international courts validate the violation of the human rights of minorities within of the States. In that sense, the work will argue that a limited application of the national margin of appreciation in multicultural cases of vulnerable groups, allowing regional human rights courts to protect ethnic, religious and cultural minorities against the established internal discrimination or against the violation of the rights protected in the American Convention of Human Rights.