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Securing the Future of the European Court of Human Rights in the Face of UK Opposition

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Political Compromise and Restricted Rights

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.

Affiliations: 1: Lecturer in Law, School of Law, Politics and Sociology, University of Sussex, K.D.Brayson@sussex.ac.uk

10.1163/22131035-00601001
/content/journals/10.1163/22131035-00601001
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/content/journals/10.1163/22131035-00601001
2017-05-24
2017-11-22

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