The Future of the European Court of Human Rights - Subsidiarity and the Political Conception of Human Rights
by Judge Robert Spano, European Court of Human Rights
The European Court of Human Rights has in recent years developed new ways of striking a balance between national institutions and the Court. Section President and Judge Robert Spano explains these new development in this talk.
Summary: The lecture will proceed in three parts:
First, a historical/descriptive account will be given of the development of the case-law as characterised by the ECtHR’s emphasis in the period from ca. 1970-2010 on embedding substantive and methodological principles (the Embedding Phase) under the Convention into the domestic legal orders within a receptive euro-political environment towards the Court increasingly, post-Brighton, being focused on their domestic enforcement (the Procedural Enforcement Phase).
Second, this development will be both defended as the correct descriptive (empirical) account of the Court’s case-law but, more importantly, also on the basis of a normative conception of subsidiarity as reflected in (1) the text of the Convention, (2) the normative foundational basis of Convention Rights which makes a crucial difference, on the one hand, between absolute rights, which must be interpreted and applied taking account of a moral (universal) conception of human rights, and, on the other, qualified rights which are more appropriately justified on the basis of a political conception of rights. This latter category (qualified rights) will then (3) be discussed in particular, and a political conception of democratic/communal Convention rights elaborated to demonstrate that the legitimacy of the Convention rights will for the future best be preserved with the Court adopting a restrained weak-type processed based review which allows for the democratic infusion of rights development. In this regard, it will be argued that this development must take account of the need to de-juridify the concept of human rights, as the sole monopoly of legal elites and professionals, including international judges, and thus rather allowing human rights to be increasingly the project of the peoples through their elected representatives. This argument will be explored taking account of theories in the political sciences and political philosophy, in particular the distinction often made between legal and political constitutionalism.
Thirdly, the lecture will finally question whether, on the basis of this normative conception or justification for subsidiarity, the methodological principles in the Court’s case-law, in particular the benchmark test of proportionality and the margin of appreciation, will need to be re-adjusted in the future in the interpretation and application of qualified rights; in other words whether the Court should proceed with re-evaluating the embedded principles in the light of the needs of a more effective procedural enforcement phase on the basis of subsidiarity. In particular, should the Court move away from proportionality as the benchmark Convention test under Articles 8-11 towards a more robust assessment of the invoked aims justifying interference with Convention rights.
Before being appointed to the European Court of Human Rights, Judge Spano was a Professor of Law and Dean, University and Iceland, a district court judge, an ad hoc Judge at the EFTA Court and Parliamentary Ombudsman of Iceland (provisional appointment and ad hoc).
Time: 1 December 2017, 13:00-14:30
Registration: For participation in thhis lecture please use this registration form no later than Friday 1 December 2017, 10:00.