Follesdal, Andreas: In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. (Type: Journal Article | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation)@article{RN52180,Member states of the Council of Europe subject themselves to judicial human rights review by the European Court of Human Rights. That Court in turn defers sometimes to the judgments of domestic courts about compliance, granting them a margin of discretion, more so when it sees a European consensus. This complex practice can be justified based on arguments about comparative epistemic expertise, respect for democratic decision making, and the need to avoid undue judicial discretion – juristocracy. While this account supports the general practice, it points to certain weaknesses and areas of improvement: the rules to nominate and elect judges and members of the Registry of the Court, the doctrine of the margin of appreciation, and the rationales for a European consensus. |
Follesdal, Andreas; Ulfstein, Geir: The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?. In: EJIL talk, 2018. (Type: Journal Article | Abstract | Links | Tags: debate, European Court of Human Rights, Human Rights)@article{RN50938,The Danish Chairmanship of the Council of Europe has proposed a new installation to the reform saga of the European Court of Human Rights (ECtHR). Their recipes sound innocuous: no one can be against ‘sharing responsibility’ for human rights protection, or for improved ‘dialogue’ between the Court and states. Many fear that in the Danish details, sovereignty will trump human rights protection. Broader trends and issues in the shadows of subsidiarity merit further attention, lest shared responsibility morphs into no one’s responsibility, and the discursive dialogue turns Melian, allowing state executives to do as they can and leave the Court to judge as it must…. |
Saul, Matthew; Follesdal, Andreas; Ulfstein, Geir: The International Human Rights Judiciary and National Parliaments: Europe and Beyond. Cambridge University Press, Cambridge, 2017, ISBN: 9781107183742. (Type: Book | Abstract | Links | Tags: Edited books, European Court of Human Rights, Human Rights)@book{RN52622,The emerging international human rights judiciary (IHRJ) threatens national democratic processes and ‘hollows out’ the scope of domestic and democratic decision-making, some argue. This new analysis confronts this head on by examining the interplay between national parliaments and the IHRJ, proposing that it advances parliament’s efforts. Taking Europe and the European Court of Human Rights as its focus – drawing on theory, doctrine and practice – the authors answer a series of key questions. What role should parliaments play in realising human rights? Which factors influence the effects of the IHRJ on national parliaments’ efforts? How can the IHRJ adjust its influence on parliamentary process? And what triggers the backlash against the IHRJ from parliaments and when? Here, the authors lay foundations for better informed scholarship and legal practice in the future, as well as a better understanding of how to improve the effectiveness and validity of the IHRJ. |
Follesdal, Andreas; Tsereteli, Nino: The margin of appreciation in Europe and beyond – Special Issue. 2016. (Type: Book | Abstract | Tags: European Court of Human Rights, Human Rights, International courts, Margin of Appreciation, Special issues)@book{RN50638,Is the margin of appreciation doctrine of the European Court of Human Rights (ECtHR) a promising model of deference by a regional human rights court towards democratic states? Or does this doctrine amount to an abdication by such courts from their proper tasks of protecting human rights against violations by states? This special section contributes to the ongoing scholarly debate about the margin of appreciation doctrine, originally developed by the ECtHR. It also explores the emergence of similar doctrines of deference in human rights adjudication outside Europe. The four articles also raise issues relevant for a broader debate about legitimacy and effectiveness of international courts. The authors cover a number of courts, well-established as well as relatively young ones, operating in different legal and political contexts. It allows reflecting on common as well as courtspecific reasons for exercising or avoiding deference. |
Public Debate
| : In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. |
| : The Draft Copenhagen Declaration: Whose Responsibility and Dialogue?. In: EJIL talk, 2018. |
| : The International Human Rights Judiciary and National Parliaments: Europe and Beyond. Cambridge University Press, Cambridge, 2017, ISBN: 9781107183742. |
| : The margin of appreciation in Europe and beyond – Special Issue. 2016. |