Securing the future of the European Court of Human Rights in the face of UK opposition: political compromise and restricted rights

Brayson, Kimberley (2017) Securing the future of the European Court of Human Rights in the face of UK opposition: political compromise and restricted rights. International Human Rights Law Review, 6 (1). pp. 53-85. ISSN 2213-1027

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Abstract

This article highlights transnational consequences for access to justice of political posturing by national governments in respect of the European Convention on Human Rights (ECHR). It charts the UK context preceding the adoption of Protocol 15, which inserts the concepts of subsidiarity and the margin of appreciation into the ECHR preamble. The article argues that whilst this was an attempt to curb European Court of Human Rights’ powers, this proved limited in effect, as the court is too well established as a Supreme Court for Europe in the cosmopolitan legal order of the ECHR. The political-legal interplay which is the genesis of the ECHR system means that political manoeuvring from national governments is inevitable, but not fatal to its existence. However, the legitimacy of the ECtHR is secured only through political concessions, which act to expel surplus subjects from ECHR protection. The article concludes that the legitimacy of the ECtHR is therefore secured at the cost of individuals whose rights are worth less than the future of the court.

Item Type: Article
Keywords: Protocol 15 European Convention on Human Rights, subsidiarity, margin of appreciation, Supreme Court for Europe, cosmopolitan legal order, access to justice
Schools and Departments: School of Law, Politics and Sociology > Law
Research Centres and Groups: Sussex Centre for Human Rights Research
Subjects: K Law > K Law in General. Comparative and uniform Law. Jurisprudence > K0201 Jurisprudence. Philosophy and theory of law > K0236 Universality and non-universality of law
K Law > K Law in General. Comparative and uniform Law. Jurisprudence
Depositing User: Kimberley Brayson
Date Deposited: 07 Feb 2017 15:50
Last Modified: 23 Jun 2017 10:46
URI: http://sro.sussex.ac.uk/id/eprint/66466

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