Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?

Follesdal, Andreas

Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?

Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, Arnardóttir, Oddný Mjöll and Buyse, Antoine (eds) London: Routledge 2016

PluriCourts Research Paper No. 15-10

25 Pages Posted: 18 Aug 2015 Last revised: 20 Aug 2015

See all articles by Andreas Follesdal

Andreas Follesdal

Pluricourts

Date Written: August 11, 2015

Abstract

How should the European Court of Human Rights best ‘balance’ respect for the sovereignty of states with protection of the human rights of their citizens? The Court's theory of subsidiarity must inform its margin of appreciation doctrine when Protocol 15 includes these two concepts in the Preamble of the European Convention on Human Rights. Issues for the Court and for researchers include aspects the doctrine of the margin of appreciation: the proportionality test and the 'European consensus’; and a more justifiable conception of subsidiarity.

Keywords: Margin of appreciation, Brighton declaration, subsidiarity, legal theory, European Court of Human Rights, sovereignty, human rights

Suggested Citation: Suggested Citation

Follesdal, Andreas, Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun? (August 11, 2015). Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, Arnardóttir, Oddný Mjöll and Buyse, Antoine (eds) London: Routledge 2016; PluriCourts Research Paper No. 15-10. Available at SSRN: https://ssrn.com/abstract=2642403