Rethinking Subsidiarity in International Human Rights Adjudication

17 Pages Posted: 14 May 2009 Last revised: 1 Jul 2013

William M. Carter Jr.

University of Pittsburgh - School of Law

Date Written: 2009

Abstract

This article suggests that a re-evaluation of the principle of subsidiarity is in order. While I make no sweeping claims that the principle of subsidiarity is always preferable or always undesirable, I do suggest that a close look at the myriad ways in which subsidiarity applies reveals that it may sometimes impede, rather than advance, the cause it purports to serve: namely, achieving universality of human rights. This article identifies situations where subsidiarity is more likely to diminish human rights protections that it is to advance them and suggests that subsidiarity should be abandoned or minimized in such areas.

Keywords: international law, international human rights law, treaties, margain of appreciation, deference, subsidiarity, European Court of Human Rights, Universal Declaration of Human Rights, International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil

JEL Classification: K33, K41

Suggested Citation

Carter, William M., Rethinking Subsidiarity in International Human Rights Adjudication (2009). Hamline Journal of Public Law and Policy, 2009; Temple University Legal Studies Research Paper No. 2009-30. Available at SSRN: https://ssrn.com/abstract=1402942

William M. Carter Jr. (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-1401 (Phone)

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