The Brighton Aftermath and the Changing Role of the European Court of Human Rights
Journal of International Dispute Settlement, Forthcoming
Posted: 18 Mar 2017
Date Written: March 16, 2017
This article argues that recent case-law on the margin of appreciation indicates that the European Court of Human Rights is in the process of redefining its relationship with the national authorities.
It further elaborates how the case-law exhibits:
a) the deferral of more elements of fine-tuning under the principle of proportionality to those national authorities that exhibit due Convention diligence by applying the Court’s jurisprudence and analytic methodologies at home,
b) increased emphasis on the Court’s role as the provider of general interpretative guidance, and
c) the operationalisation of a wider-reaching res interpretata (or erga omnes) effect for the Court’s judgments.
In the final analysis it is argued that, while remaining within the confines of existing Convention structures, the Court’s role is developing towards clearer resemblance with providers of ‘constitutional’ justice, and that this is supported in a recent CDDH report on the longer-term future of the Convention system.
Keywords: European Court of Human Rights, constitutionalisation, res interpretata, margin of appreciation
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