Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has it Just Begun?
This chapter by PluriCourts co-director Andreas Føllesdal will appear in Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders (eds. Oddný Mjöll Arnardóttir and Antoine Buyse). London: Routledge 2016. Read the chapter (SSRN).
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.