Diverging Fundamental Rights Standards and the Role of the European Court of Human Rights

Forthcoming in: M. Claes and M. De Visser (eds), Constructing European Constitutional Law (Oxford: Hart, 2014)

19 Pages Posted: 25 Oct 2013

See all articles by Janneke Gerards

Janneke Gerards

Utrecht University - Faculty of Law; Institute for Jurisprudence, Constitutional and Administrative Law

Date Written: October 24, 2013

Abstract

Codifications and standards of fundamental rights diverge in the EU member states as a result of differences in legal tradition, constitutional values and historical developments. Although such differences are difficult to reconcile with the notion of universality of human rights protection and an increasingly united Europe, they cannot be ignored. Moreover, many hold on to the idea of a national constitutional identity that is reflected in respect for national constitutional values. The European Court of Human Rights, entrusted with the task of developing and maintaining reasonable standards of fundamental rights protection for the entire Council of Europe, faces the challenge of having to balance respect for diversity with the need for uniform and effective rights protection. It is often thought that the famous margin of appreciation doctrine is the Court’s main tool in finding this balance. This paper shows, however, that the Court’s application of the doctrine has made it into a rather meaningless and empty rhetorical device without any real practical value. This is different for the Court’s use of incrementalism, which increasingly seems to have replaced the use of the margin of appreciation doctrine as an instrument to deal with the need to reconcile European standard setting and national diversity. This paper demonstrates that the Court often combines case-based decision-making with the creation of sets of criteria and standards of a more general nature. It concludes that this approach is highly valuable, as it does not only help the Court to deal with diverging fundamental rights standards, but also allows it to combine its functions of being a ‘constitutional’ court for fundamental rights issues as well as court of last instance for individual victims of fundamental rights violations. Nevertheless, this paper argues that the Court could even further benefit from the potential of its strategic instruments if it would make better use of filtering mechanisms such as its ‘priority policy’ and if it would reconsider the use of its margin of appreciation doctrine.

Keywords: fundamental rights, European Convention of Human Rights (ECHR), European Court of Human Rights, diversity, margin of appreciation doctrine, incrementalism, constitutional courts

Suggested Citation

Gerards, Janneke, Diverging Fundamental Rights Standards and the Role of the European Court of Human Rights (October 24, 2013). Forthcoming in: M. Claes and M. De Visser (eds), Constructing European Constitutional Law (Oxford: Hart, 2014). Available at SSRN: https://ssrn.com/abstract=2344626

Janneke Gerards (Contact Author)

Utrecht University - Faculty of Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

Institute for Jurisprudence, Constitutional and Administrative Law ( email )

Achter Sint Pieter 200
Utrecht, 3512 HT
Netherlands

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