Forthcoming in Journal of International Dispute Settlement
iCourts Working Paper Series No. 100
36 Pages Posted: 28 Jun 2017
Date Written: June 27, 2017
Has the Brighton Declaration produced a New Deal on European human rights in terms of engendering a new and more central role to national legal and political institutions? A greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), the articles concludes that the ECtHR is indeed providing more subsidiarity following the Brighton Declaration. It does so by a greater use of the terms “margin of appreciation” and “wide(r) margin,” and particularly with regard to two areas of law: Art. 8 on the right to privacy and Art. 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is very uneven across the member states. The old Western member states generally benefit far more from these new directions in the ECtHR’s jurisprudence. But contrary to popular belief, vocal critiques of the system are not given more deference according to this analysis. A final more general conclusion follows from these findings, namely that the ECtHR is receptive to political signals and does not operate in isolation from politics as it is often claimed. Although currently merely soft law documents, the Brighton Declaration and associated Protocols have triggered change at the Court in the direction set out in these documents and events. This has theoretical implications for the understanding of the evolution of international courts.
Keywords: European Court of Human Rights, Brighton Declaration, Theories of Legal Change, Soft Law, Law and Politics
Suggested Citation: Suggested Citation
Madsen, Mikael Rask, Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe? (June 27, 2017). Forthcoming in Journal of International Dispute Settlement ; iCourts Working Paper Series No. 100. Available at SSRN: https://ssrn.com/abstract=2993222