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 the European Court of Human Rights’ (ECtHR) 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.
Highlights
On 7 November 2011 the Conservative-Liberal Democrat coalition UK government took up its six-month chairmanship of the Committee of Ministers (CoM) of the Council of Europe (CoE)
It charts the UK context preceding the adoption of Protocol 15, which inserts the concepts of subsidiarity and the margin of appreciation into the European Convention on Human Rights (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
Summary
On 7 November 2011 the Conservative-Liberal Democrat coalition UK government took up its six-month chairmanship of the Committee of Ministers (CoM) of the Council of Europe (CoE). 65 European Court of Human Rights, Opinion of the Court on Draft Protocol No.[15] to the European Convention on Human Rights, adopted on 6 February 2013, para 4: ; Parliamentary Assembly of the Council of Europe (PACE), Draft Protocol 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms, Opinion No 283(2013), adopted on 26 April 2013, para 2.1: It is clear from the wording of the new preamble, especially in light of UK government political preferences, that the intention was to shift power in favour of national governments in terms of deciding when they should be subject to human rights review and to limit the scope of the ECHR in reducing the time limit for applications and amending the admissibility criteria to the ECtHR.[66] The UK government consider that Protocol 15 shifts the role of the ECtHR to that of advisory body and have declared to have brought change to the way in which the ECtHR operates through the Brighton declaration.[67]. This interplay transposes to the present day existence of the ECHR as a dynamic legal system of human rights protection through the way in which the ECtHR and domestic courts interact and apply the ECHR rights
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