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Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops Can Strengthen the Authority of the European Court of Human Rights

Joana Mendes & Ingo Venzke, Allocating Authority (Oxford: Hart Publishing, 2018)

iCourts Working Paper Series No. 102

University of Copenhagen Faculty of Law Research Paper No. 2017-44

27 Pages Posted: 11 Aug 2017 Last revised: 3 Oct 2017

Mikael Rask Madsen

University of Copenhagen - iCourts - Centre of Excellence for International Courts; University of Copenhagen - Faculty of Law

Date Written: August 10, 2017

Abstract

This paper analyses the question of relative authority and separation of powers with regard to the European Court of Human Rights (ECtHR). Focus is on the specific processes that might perpetuate and even bolster authority in complex regimes of global governance such as the ECtHR. Building on a previous work on the variable authority of ICs, and notably how contexts shape that authority, the paper is particularly interested in how inter-institutional processes and feedback mechanisms operate in practice and create workable ensembles of institutions exercising relative authority. The chapter’s empirical analysis focuses on four instances of law-politics interfaces in the evolution of the ECtHR. It highlights particular moments in which the authority of the ECtHR has been challenged and how such challenges have either been overcome or resulted in insolvable collusions between the Court and the Member States. The analysis concludes that the current informal system of checks-and-balances in some cases is insufficient for avoiding clashes over the Court’s interpretations of the ECHR. Against the background of the empirical analysis, the paper develops original proposals for institutional reform that might help create better feedback loops in the area of European human rights. These include a different role for the Committee of Ministers, a greater participation and transparency with regard to proceedings before the Court, and the introduction of a form of appeals system. All of these proposals can be introduced in the current system with only minor amendments to the existing framework.

Keywords: European Court of Human Rights, Theories of Authority, Separation of Powers, Reform of the European Human Rights System, Law and Politics

Suggested Citation

Madsen, Mikael Rask, Bolstering Authority by Enhancing Communication: How Checks and Balances and Feedback Loops Can Strengthen the Authority of the European Court of Human Rights (August 10, 2017). Joana Mendes & Ingo Venzke, Allocating Authority (Oxford: Hart Publishing, 2018); iCourts Working Paper Series No. 102; University of Copenhagen Faculty of Law Research Paper No. 2017-44. Available at SSRN: https://ssrn.com/abstract=3016337

Mikael Madsen (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen - Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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