Coping with Crisis: Whither the Variable Geomety in the Jurisprudence of the European Court of Human Rights

Abstract

This article offers a new take on the diagnosis of the crisis of the European human rights system by focusing on the diversification of the attitudes towards the European Court of Human Rights by the national compliance audiences, namely domestic executives, parliaments and judiciaries. This diagnosis holds that national compliance audiences of the European Court of Human Rights can no longer be characterized as lending an overall support to the human rights acquis of Europe, that centers around the European Court of Human Rights as the ultimate authoritative interpreter of the Convention. Instead, alongside states that continue to lend overall support to the Court’s authority over the interpretation of the Convention, two types of new attitudes have developed towards the Convention across the Council of Europe in recent decades. First, there are now national compliance audiences that demand co- sharing of the interpretation task of the Convention with the European Court of Human Rights. Second, there are national compliance audiences that flout the well-established Convention standards, not merely by error, or lack of knowledge of adequate application, but with suspect grounds of intentionality and lack of respect for the overall Convention acquis. Following this diagnosis, I argue that instead of holding on to a business as usual attitude, the Court has also developed coping strategies in order to handle the fragmentation of the attitudes of its audiences by investing more in a human rights jurisprudence of a variable geometry, recognizing differentiation in the individual circumstances of states as a basis for human rights review.

Keywords: European Court of Human Rights, variable geometry, good faith review, procedural review, bad faith review

JEL Classification: K33