Theoretical views on the concept of subsidiarity are examined followed by an analysis of the origins of the principle of subsidiarity within the European Convention on Human Rights. The Court's ...utilization of the principle, as disclosed by the jurisprudence, is studied across three time periods encompassing the original part-time Court, the first decade of the full-time Court and the post-Interlaken era. This is supplemented by a consideration of some quantitative data, derived from the Court's HUDOC database, on the usage of subsidiarity in the case reports of Court judgments. Particular attention is given to Grand Chamber judgments since 2010. Overall conclusions are then drawn on, inter alia, whether the Court's use of the principle has altered over time, whether the principle is simply a device to limit the authority of the Court, who can benefit from the application of the principle and what links may be made between the theoretical writings and the actual judgments delivered at Strasbourg.
This article discusses the creative role adopted by the European Court of Human Rights in the face of situations not envisaged by the drafters of the European Convention in the late 1940s, resulting ...from the inevitable evolution of societies and their changing ethical standards. Although the Vienna Convention on the Law of Treaties 1969 is a constant source of inspiration to the Court for the interpretation of the Convention, the article points to two new techniques of interpretation adopted by the Court, namely the 'living instrument' doctrine and the 'practical and effective' doctrine. An attempt is made to highlight the advantages and the weaknesses of both of these innovative interpretational approaches. Additionally, an assessment is made of how the Court has responded to present-day demands and maintained a balance between judicial creativity and respect for the role of member States as the key policy-makers in determining the scope of rights guaranteed by the Convention.
This study begins by examining the origins of the fair balance principle. There follows an analysis of the application of the principle across a range of rights and freedoms guaranteed by the ...European Convention on Human Rights. The functions performed by the fair balance principle, together with the factors assessed by the Court when utilising the principle are distilled from the case-law. Conclusions are drawn as to the relationship between the fair balance principle and the margin of appreciation doctrine.
The article begins with a consideration of the views of commentators, from both inside and outside the Strasbourg system, as to the nature of precedent within the jurisprudence of the Court. The ...approach of the original Court is then examined. This is compared with the contemporary case law of the full-time Court and three justifications for overruling established rulings are identified in the modern jurisprudence. Institutional features of the overruling process, including the roles of third parties and Court-directed changes, are addressed. Conclusions are drawn as to the present Court's reluctance to expressly acknowledge that it is overruling established case law and its failure to always provide adequate justifications of the social or scientific developments underpinning its revised jurisprudence.
As we noted in a previous issue of this Review, in 2009 the President of the European Court of Human Rights ('the Court'), Jean-Paul Costa, had publicly called upon the State Parties to the European ...Convention on Human Rights (ECHR or 'the Convention') to hold a conference of high level representatives to both re-emphasise State support for the Court and to initiate a process of long-term reform of the Strasbourg system. Switzerland, which was to assume the rotating chair of the Committee of Ministers of the Council of Europe, undertook to organise such a conference, to be held in Interlaken, in early 2010.
The ever increasing difficulties that the European Court of Human Rights ('Court') has faced in handling the remorseless increase in applications being lodged with it has been a topic regularly ...analysed in this journal. Indeed, the first issue contained an examination of the emerging backlog of cases and President Wildhaber's initial thoughts on institutional reform of the full-time Court. In 2007 we noted the Russian Duma's rejection of Protocol 14, thereby preventing Russian ratification of the Protocol. Despite repeated public requests from both the political and judicial organs of the Council of Europe the Russian authorities have still not ratified this Protocol, with the consequence that it has not entered into force even though all the other 46 State Parties had ratified the Protocol by the autumn of 2006. In April 2008, the Chair of the Legal Affairs and Human Rights Committee of the Council of Europe's Parliamentary Assembly, Mrs Herta Daubler-Gmelin, wrote to the Head of the Russian delegation to the Assembly referring to the possibility of parties to a treaty voluntarily applying its provisions on a provisional basis prior to the formal entry into force of the treaty. She based her letter on Article 25 of the Vienna Convention on the Law of Treaties 1969.
PDF
