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: A better Signpost, not a better walking Stick: How to evaluate the European Consensus doctrine. In: Kapotas, Panos; Tzevelokos, Vassilis (Ed.): Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond, pp. 189-209, Cambridge University Press, Cambridge, 2019. (Type: Book Chapter | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation, publication)@inbook{RN50770,One of the more contested interpretative practices of the European Court of Human Rights (ECtHR) is its sighting of an ‘emerging European consensus’ (EuC) and the implications that the Court draws. If this practice is to be kept, suggestions for its improvement should be guided by the normatively justifiable roles such a practice should play, be it as part of the Court’s ‘dynamic interpretation’ of the Convention, or as a means to specify the margin of appreciation doctrine, or both. This requires closer reflection about which are sound reasons for the Court to appeal to EuC. Section 9.1 sketches the current practice of the Court. Section 9.2 explains why several critics claim that the EuC practice is too vague and otherwise problematic. Section 9.3 considers some of the most prominent arguments in favour of EuC, noting that several of these arguments fail to consider the peculiar subsidiary role of the human rights review by the ECtHR within the multi-level European legal order. |
Follesdal, Andreas: Building democracy at the bar: The European Court of Human Rights as an agent of transitional cosmopolitanism. In: Transnational Legal Theory, no. special issue, ed. Claudio Corradetti, pp. 95-113, 2016. (Type: Journal Article | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, publication)@article{RN50171,How, if at all, does the European Court of Human Rights (ECtHR) promote more just states which vary greatly in their democratic credentials? The article considers the ECtHR and its practices from the perspective of ‘non-ideal theory,’ namely how it helps states become more stable and just, and more compliant with the human rights norms of the European Convention on Human Rights. The article first sketches what is meant by ‘non-ideal theory,’ then considers aspects of the Council of Europe and the ECtHR which promote transitions toward more just member states. The ECtHR’s practices suffer from at least two weaknesses in this regard: it assumes with insufficient argument that standards appropriate for ‘ideal theory’ conditions of full compliance also should apply to states that suffer from wide ranging noncompliance, or from unjust institutions. Secondly, the Court relies on an ‘emerging European consensus’ with insufficient empirical and normative justification. |
Follesdal, Andreas: Squaring the Circle at the Battle at Brighton: Is the War between protecting human rights or respecting sovereignty over, or has it just begun?. In: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, pp. 189-204, Routledge, London, 2016. (Type: Book Chapter | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation, publication)@inbook{RN50034,How should the European Court of Human Rights best ‘balance’ respect for the sovereignty of states with protection of the human rights of their citizens? The Court’s theory of subsidiarity must inform its margin of appreciation doctrine when Protocol 15 includes these two concepts in the Preamble of the European Convention on Human Rights. Issues for the Court and for researchers include aspects the doctrine of the margin of appreciation: the proportionality test and the ‘European consensus’; and a more justifiable conception of subsidiarity. |
Publications
| : In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. |
| : A better Signpost, not a better walking Stick: How to evaluate the European Consensus doctrine. In: Kapotas, Panos; Tzevelokos, Vassilis (Ed.): Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond, pp. 189-209, Cambridge University Press, Cambridge, 2019. |
| : Building democracy at the bar: The European Court of Human Rights as an agent of transitional cosmopolitanism. In: Transnational Legal Theory, no. special issue, ed. Claudio Corradetti, pp. 95-113, 2016. |
| : Squaring the Circle at the Battle at Brighton: Is the War between protecting human rights or respecting sovereignty over, or has it just begun?. In: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, pp. 189-204, Routledge, London, 2016. |