Abstract

CLERICO, LAURA. The argument of the lack of regional consensus on human rights. Divergence between the ECtHR and the IACtHR. Rev. Derecho Estado [online]. 2020, n.46, pp.57-83. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n46.03.

This work analyzes a central argument in the ECTHR that combines the absence of a European consensus with a wide margin of appreciation for the State. The complexities of this constellation are usually obscured when some States of the Inter-American region advocate its importation. To this end, it is proposed to distinguish different uses of consensus, as well as the descriptive and normative function of the argument, and the relationship between the existence or absence of the European consensus and the determination of the margin of appreciation of the State. These complexities allow to accurately determine the divergence between the ECTHR and the IACTHR in the use of the lack of regional consensus in the constellation of cases related to discrimination based on sexual orientation, as well as to propose various hypotheses that explore the divergence. All this argumentative path allows to continue supporting the thesis about the divergent argumentative profiles of the regional courts that is determined by their audiences: the ECTHR, as a court concerned by the interlocutors, the States of the region, in front of the IACTHR as a court concerned with evaluating the (un)reasons for the restrictions on rights, beyond the (un) pleasure of the States of the region.

Keywords : Lack of European consensus - Lack of Inter-American consensus - Argumentative approach of the ECHtR and the IACTHR - Divergences - Discrimination based on sexual orientation.

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