The Failure to Destroy the Authority of the European Court of Human Rights: 2010-2018

Abstract

In the 2010-2018 period, certain Member States of the Council of Europe engaged in an unprecedented attempt to undermine the authority of the European Court of Human Rights. The United Kingdom and Denmark, supported by critics in academia, notably sought to institutionalise the principles of “subsidiarity” and “the margin of appreciation” as formal deference doctrines. In a series of High Level Conferences, a large majority of Member States repudiated these efforts, leaving the basics of the Court’s powers intact. Despite scholarly efforts to demonstrate the contrary, our analysis does not confirm that the Court has “walked-back” rights, or retreated from its basic jurisprudential orientations. Rather, the Court has sought to address its “dilemma of effectiveness” through inter-judicial dialogue and complex forms of proceduralization.