The Future of Regional Human Rights Protection in Europe and the Americas – or: Subsidiarity Revisited

Abstract

This article addresses the future of human rights protection in Europe and the Americas against the backdrop of increased backlash-tendencies in both regional human rights protection systems. It argues that the principle of subsidiarity may provide guidance in that context: Considerations of subsidiarity not only contribute to better understand the approaches of the European and the Interamerican Court of Human Rights (ECtHR, IACtHR) on a descriptive level. They may also provide normative parameters for an “ideal” distribution of roles between the national and international (regional) levels. Therewith, drawing on subsidiarity helps to deal with populist backlash-tendencies in a constructive manner. This is also reflected in the case law of the ECtHR and the IACtHR. While the Courts’ approaches to and interactions with the national level have traditionally differed significantly, this has changed more recently. Both Courts increasingly refer to the “good” functioning of domestic institutions, which may be viewed as expression of a cooperative dimension of subsidiarity. It also points the way to the future of regional human rights protection.