Human Rights Law Review · 2018 · 125 citations · 4 references
LawHuman Rights LawInternational LawHuman RightsJudicial ReviewPublic International LawEuropean LawInternational Human Rights LawJudicial Decision-makingLegal ProcedureRule Of LawEu Constitutional LawEuropean Convention On Human RightsEuropean Human Rights LawHuman Rights MechanismsRights Protection By CourtsSubsidiarity Reform
The European Convention on Human Rights is entering a transformative era that requires intact domestic legal foundations. The author aims to reflect on the Court’s past, present, and future to secure higher, more sustainable Convention protections for member states. The Court’s process‑based review seeks to increase national engagement with the Convention, but requires decision‑makers to be structurally capable of safeguarding human rights. The author argues that the Court has moved from a substantive embedding phase to a procedural embedding phase, and that states lacking rule of law cannot expect deference under process‑based review.
The current era in the life of the European Convention on Human Rights is a transformative one. The author, a serving judge of the Strasbourg Court, thus finds it opportune to look back in time, consider the present and reflect on the future. In the article, it is argued that the last 40 years or so constituted the Court's 'substantive embedding phase'. This phase has now in general shifted towards a new historical era, the 'procedural embedding phase', which is analysed in detail. During this latter phase, the Court has begun to realign its project attempting to trigger increased engagement with the Convention by national authorities using a mechanism termed 'process-based review'. The overall aim is to secure a higher and more sustainable level of Convention protections within the States subject to European supervision. However, within this process-based review mechanism, national decision-makers have to be structurally capable of fulfilling the task of effectively securing human rights. This means that the foundations of the domestic legal order have to be intact. States that do not respect the rule of law cannot expect to be afforded deference under process-based review in the age of subsidiarity.
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