The new subsidiarity doctrine of the European Court of Human Rights
Has the Brighton Declaration produced a New Deal on European human rights by assigning a new and more central role to national legal and political institutions and by demanding greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), Mikael Rask Madsen’s new article in Journal of International Dispute Settlement concludes precisely that. The Court now makes greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly regarding two areas of law: Article 8 on the right to respect for private and family life and Article 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is not conferred on all Member States equally.
The old, Western Member States are generally the greatest beneficiaries of the ECtHR’s new jurisprudential directions. But the analysis also demonstrates that, contrary to popular belief, the most vocal critics of the system are not given preferential treatment. A final, more general conclusion that follows from these findings is that the ECtHR is receptive to political signals and does not, as is often claimed, operate in a political vacuum. Although currently merely soft law documents, the Brighton Declaration and its associated Protocols, by precipitating change at the Court, have achieved exactly what they set out to do. This has theoretical implications for the understanding of the evolution of international courts.
Mikael Rask Madsen is Center Director and Professor at the Faculty of Law, University of Copenhagen, Centre of Excellence for International Courts (iCourts). Mikael Rask Madsen’s research is focused on globalization and the role of legal institutions and professionals in these processes, including international courts and their evolutions and challenges, the role of legal elites in the globalization, the development of the legal profession and legal knowledge and power.