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Estudios constitucionales

On-line version ISSN 0718-5200

Abstract

MARTIN SANCHEZ, María. The margin of appreciation in international human right to life: Restriction of personal rights and response of the Strasbourg Court. Estudios constitucionales [online]. 2020, vol.18, n.2, pp.3-50. ISSN 0718-5200.  http://dx.doi.org/10.4067/S0718-52002020000200003.

The human right to life poses serious difficulties. The conflict between the right to life, the right to privacy and the protection of life itself, does not obtain a clear answer from the courts of rights. A balancing exercise that justifies the proportionality of the restriction of the individual's rights by some States is essential. The Strasbourg Court, guarantor of rights in Europe, faced with the complexity of giving a unanimous answer in a framework of diversity and lack of consensus, resorts to the free margin of national appreciation. This doctrine allows the European Court to offer an open response that accommodates the different legal realities in Europe, although it marks certain insurmountable limits that safeguard the essential content of human rights, restraining a disproportionate ´pro-life´ legal restriction. However, it plays on ambiguity by combining the prioritization of ´deep moral values´ over the European consensus, with a recent prioritization of the right of women to terminate their pregnancy in accordance with national law on conscientious objection by health workers, which could risk a pro-freedom tendency (pro-abortion and, by extension, pro-euthanasia) in its jurisprudence.

Keywords : life; right to life; private life; margin of appreciation; European Court of Human Rights..

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