La Doctrina del Margen de Apreciación como instrumento de la protección de los derechos humanos

Abstract: Considering world history, it has sometimes been understood that using human rights as a basis for all international relations is an imposition from the western world, and that this whole discourse is just a cover for the interests of the most powerful nations, while this has been used very often as an excuse for the lack of attention to the guardianship of human rights, which makes international cooperation very difficult. Human Rights are supposed to be the means towards dignity, but they must be studied in the light of anthropology, history, and sociology so they can be really and efficiently protected, because cultural differences are also slowing down the cooperation between nations for this purpose. The purpose of the margin of appreciation doctrine, which was developed by the European Court of Human Rights, is to preserve the autonomy of judicial decisions of every nation, but always respecting certain values that deserve a special protection, despite cultural differences, which restricts the activity of international organisms and strengthens the idea that it is the responsibility of the nations to protect human rights in the first place, and they will be supervised by the international organisms, whose job will be subsidiary , which means that they will seek the protection of human rights without interfering with sovereignty or self-government of the nations, which has been one of the biggest challenge for human rights worldwide. Many people believe passionately in human rights. Others - Bentham, Marx, cultural relativists and some feminists amongst them - dismiss the concept of human rights as practically and conceptually inadequate. This book reviews these classical critiques and shows how their insights are reflected in the case law of the European Court of Human Rights. At one level an original, accessible and insightful legal commentary on the European Convention, this book is also a groundbreaking work of theory which challenges human rights orthodoxy. Its novel identification of four human rights schools proposes that we alternatively conceive of these rights as given (natural school), agreed upon (deliberative school), fought for (protest school) and talked about (discourse school). Which of these concepts we adopt is determined by particular ways in which we believe, or do not believe, in human rights. Sumario: I. Relativismo cultural y derechos humanos. II. La Doctrina del Margen de Apreciación y su desarrollo como instrumento del Tribunal Europeo de Derechos Humanos. 1. Definición de la doctrina. 2. Origen y desarrollo temprano. 3. Consolidación de la doctrina. III. La protección de los derechos humanos a través de la Doctrina del Margen de Apreciación. 1. Fuentes, métodos y técnicas de la doctrina. 2. Análisis de la aplicación de la doctrina. IV. Balance de la Doctrina del Margen de Apreciación. V. Bibliografía.