"Three Interpretive Constraints on the ECHR" by Shai Dothan – University of Copenhagen

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31 March 2015

"Three Interpretive Constraints on the ECHR" by Shai Dothan

Associate Professor Shai Dothan has published a paper forthcoming in The Rule of Law at the National and International Levels: Contestations and Deference (eds. Machiko Kanetake & André Nollkaemper) (Oxford: Hart Publishing, 2015).

The paper examines the interpretive constraints on the European Court of Human Rights (ECHR). As the ECHR sets out to fulfill its goal of effectively protecting human rights in Europe, it operates under three interpretive constraints: (1) it should limit its demands from the state whose behavior is scrutinized to the obligations that this state took upon itself when it ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) and its protocols; (2) it should show deference to the policies of this state under the so-called "margin of appreciation doctrine"; and (3) it should follow the consensual view in Europe under the "emerging consensus doctrine". Often these constraints on the ECHR's interpretative discretion contradict each other. For example, the emerging consensus may expand states' obligations over and above what they agreed to in the Convention and more than the current policies of the state under review.

This paper argues that in cases of contradiction between the constraints, the ECHR should follow the constraint that is likely to lead to the best possible decision—provided that it gives the proper deference to democratically accountable institutions and is therefore normatively legitimate—while digressing from the other constraints. The paper draws on public choice insights to find the situations under which each one of the three constraints is likely to lead to a better and a more legitimate decision than the other constraints.

A link to the paper