Subsidiarity in the ECHR: an empty promise for local authorities?

Abstract

ABSTRACT Member States of the ECHR are complex entities made up of many levels. The subsidiarity principle is grounded in this social reality. However, the ECHR, just like general international law, treats its States as unitary entities: local authorities are procedurally and institutionally inexistent in the ECHR system, although they play important roles as protectors and violators of human rights. I show that the codification of the subsidiarity principle in the ECHR preamble was not intended to strengthen the role of local and regional authorities. Protocol No. 15 was only concerned with reinforcing ‘the’ States role vis-à-vis the Court. I explain this with the state’s role as the bearer of political sovereignty and the fact that sovereignty is a pre-condition for a functioning political democracy and, therefore, a democratically legitimate human rights system. Finally, the paper enquires into whether the subsidiarity principle of the ECHR might be read as an interpretative principle, which contributes to determining the scope and content of the human rights that the Strasbourg Court must guarantee, and whether this might benefit local and regional associations. I answer in the negative. Such a reading would be contrary to Protocol No. 15, as it would further empower the Court.