Judicial Deliberations in the European Court of Human Rights

Abstract

In their important 1997 article on supranational adjudication, Laurence Helfer and Anne-Marie Slaughter state that supranational adjudication in Europe is a remarkable and surprising success, and that it is clear that the European Court of Human Rights (ECtHR) ha[s] convinced national governments, individual litigants, and the European public to endorse and participate in frequent and often high-stakes adjudication at a level above the nation-state. Taking this finding as a starting point, one would be inclined to believe that the ECtHR has effectively overcome the difficulties of being a supranational court. This paper, however, attempts to shed a different light on the effectiveness of the ECtHR's judicial discourse. Focusing on a number of characteristic features of the Court's jurisprudence, it analyses how the Court deals with the practical and institutional problems that are related to its position as a supranational, semi-constitutional Court. The main finding of the paper is that the Court's argumentative approach hardly seems to be adequate and sufficient to meet these problems: the Court's discourse shows problematic ambiguities that entail considerable risks for its position as an influential and authoritative supranational court. It will be highly important to improve the Court's judicial techniques and argumentative approaches in order to safeguard its legitimacy and effectiveness.

Keywords: European Court of Human Rights, judicial argumentation, fundamental rights, supranational court, legitimacy