The Procedural Approach in International Human Rights Law and Fundamental Values: Towards a Proceduralization of the Interface of International and Domestic Law?
23 Pages Posted: 25 Apr 2018
Date Written: April 15, 2018
This article explores the impact of a procedural approach to human rights violations on fundamental values in international law. It analyses how a procedural approach in international human rights and other areas of international law mitigates between subsidiarity and a progressive development of international obligations and their authority over domestic law. Rather than constituting a simple retreat from substantive commitments, it renders them more flexible and helps to overcome the dichotomy of a value-oriented international law and a neutral inter-state legal order. In a first step, the article portrays the various aspects of proceduralization in international human rights law. This is followed by a discussion of how this migration toward procedure is linked to a notion of subsidiarity. In the case law of the ECtHR, the procedural approach facilitates a dynamic evolution either developed in the practice of Convention states (analytic or bottom-up approach) or accomplished by the Court (constructive or top-down approach). The procedural approach interacts significantly with arguments based on European consensus and contributes to the consolidation and entrenchment of human rights as fundamental values. Finally, the article compares the procedural approach in international human rights adjudication and WTO Dispute Settlement in order to assess to what extent a procedural approach presupposes a substantial notion of democratic domestic procedures.
Keywords: International human rights, European Court of Human Rights, procedural rationality control, margin of appreciation, consensus, WTO Dispute Settlement
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