The Brighton aftermath and the changing role of the European court of human rights

Oddný Mjöll Arnardóttir*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

6 Citations (Scopus)

Abstract

This article argues that recent case law on the margin of appreciation indicates that the European Court of Human Rights is in the process of redefining its relationship with the national authorities. It further elaborates how the case law exhibits: (i) the deferral of more elements of fine-tuning under the principle of proportionality to those national authorities that exhibit due Convention diligence by applying the Court's jurisprudence and analytic methodologies at home; (ii) increased emphasis on the Court's role as the provider of general interpretative guidance; and (iii) the operationalization of a wider-reaching res interpretata (or erga omnes) effect for the Court's judgments. In the final analysis it is argued that, while remaining within the confines of existing Convention structures, the Court's role is developing towards clearer resemblance with providers of 'constitutional' justice, and that this is supported in a recent CDDH report on the longer-term future of the Convention system.

Original languageEnglish
Pages (from-to)223-239
Number of pages17
JournalJournal of International Dispute Settlement
Volume9
Issue number2
DOIs
Publication statusPublished - 1 May 2018

Bibliographical note

Funding Information:
* University of Iceland, Faculty of Law. Email: [email protected]. This article is part of a larger research project on the margin of appreciation and develops research findings originally published in Oddn′y Mjöll Arnardóttir, ‘Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the ECtHR’ (2017) 28 EJIL 819–843. Different aspects of the research were also presented at a roundtable hosted by the Human Rights Interest Group at the 2015 ESIL Annual Conference (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2709669), at a conference organized by iCourts at Copenhagen University in 2016, and at a conference in Iceland in 2016. The research was partly funded by the Icelandic Research Fund, Grant No 120635022. I would like to thank Gunnar Narfi Gunnarsson for assistance with case law analysis, the organizers and participants at the above conferences for inspiring discussions, and anonymous reviewers for helpful comments.

Publisher Copyright:
© The Author 2017. Published by Oxford University Press. All rights reserved.

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