Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?

TY - JOUR

T1 - Rebalancing European Human Rights

T2 - Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?

AU - Madsen, Mikael Rask

PY - 2018/5/1

Y1 - 2018/5/1

N2 - 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), this article concludes that, after the Brighton Declaration, the ECtHR is indeed providing more subsidiarity. 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 privacy 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.

AB - 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), this article concludes that, after the Brighton Declaration, the ECtHR is indeed providing more subsidiarity. 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 privacy 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.

U2 - 10.1093/jnlids/idx016

DO - 10.1093/jnlids/idx016

M3 - Journal article

SN - 2040-3585

VL - 9

SP - 199

EP - 222

JO - Journal of International Dispute Settlement

JF - Journal of International Dispute Settlement

IS - 2

ER -