LA CORTE INTERAMERICANA DE DERECHOS HUMANOS FRENTE A LA DOCTRINA DEL MARGEN DE APRECIACIÓN

Abstract

The principal objective of this research is to analyze the concept and application of the doctrine of the margin of appreciation by the European Court of Human Rights (ECHR); and the lack of application of this by the Inter-American Court of Human Rights (Inter-American Court) within its contentious and advisory functions. In this line, two sentences will be analyzed that deal with controversial and sensitive issues for society in which the Inter-American Court omitted the application of this doctrine in its judgments: i) Contentious case "Artavia Murillo et al." Fertilization in vitro "vs. Costa Rica"; and ii) Advisory opinion on "Gender identity, equality and non-discrimination for same-sex couples". It is recommended that the IACHR Court apply the doctrine of margin of appreciation when deciding on controversial issues on which there is no consensus within countries and between several countries, in order to respect the principle of subsidiarity that governs the international law of human rights.