The Failure to Destroy the Authority of the European Court of Human Rights: 2010–2018

In: The Law & Practice of International Courts and Tribunals
Alec Stone Sweet Chair of Comparative and International Law, The University of Hong Kong Hong Kong

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Wayne Sandholtz John A. McCone Chair in International Relations, Professor of International Relations and Law, University of Southern California Los Angeles, CA USA

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Mads Andenas QC; Professor of Law, University of Oslo Oslo Norway

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In the 2010–2018 period, certain Member States of the Council of Europe engaged in an unprecedented attempt to undermine the authority of the European Court of Human Rights. The United Kingdom and Denmark, supported by critics in academia, notably sought to institutionalise the principles of “subsidiarity” and “the margin of appreciation” as formal deference doctrines. In a series of High Level Conferences, a large majority of Member States repudiated these efforts, leaving the basics of the Court’s powers intact. Despite scholarly efforts to demonstrate the contrary, our analysis does not confirm that the Court has “walked-back” rights, or retreated from its basic jurisprudential orientations. Rather, the Court has sought to address its “dilemma of effectiveness” through inter-judicial dialogue and complex forms of proceduralization.

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