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The new subsidiarity doctrine of the European Court of Human Rights

Submitted by on 03/11/2017 – 12:38 pmNo Comment

Professor and Principal Investigator of iCourts, Mikael Rask Madsen, has published a new article in the Journal of International Dispute Resolution: Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe? 

Here is the abstract:

Has the Brighton Declaration produced a New Deal on European human rights by assigning a new and more central role to national legal and political institutions and by demanding greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), this article concludes that, after the Brighton Declaration, the ECtHR is indeed providing more subsidiarity. The Court now makes greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly regarding two areas of law: Article 8 on the right to privacy and Article 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is not conferred on all Member States equally. The old, Western Member States are generally the greatest beneficiaries of the ECtHR’s new jurisprudential directions. But the analysis also demonstrates that, contrary to popular belief, the most vocal critics of the system are not given preferential treatment. A final, more general conclusion that follows from these findings is that the ECtHR is receptive to political signals and does not, as is often claimed, operate in a political vacuum. Although currently merely soft law documents, the Brighton Declaration and its associated Protocols, by precipitating change at the Court, have achieved exactly what they set out to do. This has theoretical implications for the understanding of the evolution of international courts.

The article can be accessed here.

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