L'approccio delle tre corti regionali sui diritti umani alle specificità nazionali e alla volontà democraticamente espressa dal popolo, tra deferenza e intransigenza

Abstract

The chapter explores the different relevance that the three regional human rights courts attribute to national specificities – from a historical, cultural, religious and social point of view – and to the outcome of domestic democratic processes in the interpretation and application of the regional human rights conventions, notably the European Convention on Human Rights and Fundamental Freedoms, the Inter-American Convention on Human Rights, and the African Charter of Human and Peoples’ Rights. It shows that the European Court of Human Rights has adopted a mostly deferential approach towards national specificities and the outcomes of democratic processes; the Inter-American Court of Human Rights has adopted an intransigent approach in the interpretation and application of the regional human rights standards, which does not attribute relevance to national specificities and to the fact the domestic measures assessed may be the outcome of largely democratic processes; lastly, the African Court of Human and Peoples’ Rights had adopted a flexible approach and is still finding its way to approach those issues. The chapter further assesses the reasons for those different approaches.