“Subsidiarity to the Rescue for the European Courts? Resolving Tensions between the Margin of Appreciation and Human Rights Protection”. in Join, or Die – Philosophical Foundations of Federalism. D. Heideman & K. Stoppenbrink, de Gruyter (2016) : 251-272.
Protests against how the European Court of Human Rights manages the dilemma between protecting human rights and respecting sovereignty led to Protocol 15, which includes references to ‘subsidiarity and a ‘margin of appreciation’ in the Preamble to the European Convention on Human Rights. The article argues that a ‘Principle of Subsidiarity’ can alleviate some of the challenges posed by the margin of appreciation doctrine, in particular that it sacrifices human rights protection on the altar of respect for state sovereignty. Section 1 presents the Margin of appreciation doctrine and some criticism raised against it, section 2 sketches versions of the principle of subsidiarity relevant for this discussion. Section 3 seeks to bring subsidiarity to bear on the question of which authority the ECtHR should enjoy within a multi-level European legal order, and in particular why it should grant states a certain margin of appreciation. Section 4 considers how these arguments concerning a margin of appreciation applies to the European Union—leaving the many other aspects of accession aside. [D0I/LINK] [WEB].