The ECtHR and Human Rights Theory
Postdoctoral Fellow Alain Zysset on the significance of the practice of the ECtHR for the normative theory of human rights.
The baseline for Zysset’s argumentation is the mainstream distinction between the moral and the political approaches to human rights. While the moral approach places emphasis on moral reasoning to articulate and understand the concept of human rights, the political approach aims to reconstruct the international practice of human rights.
Looking at the history and the practice of the ECtHR, Zysset suggests a reconciliatory path, arguing that an increase in investigation of the practice of the ECtHR relies on a deeper consideration of normative reasoning. More precisely, Zysset shows that a conception of democracy is underlying the courts’ reasoning:
“The more the alleged interference of the respondent State Party endangers the core interests that form the conception, the more the ECtHR restricts the margin of appreciation devoted to States Parties”, Zysset writes.
This finding also helps counter the argument about the democratic deficit of the ECtHR’s adjudication. On the contrary, Zysset suggests that the role of the ECtHR is to reinforce the democratic process within state parties:
“In more abstract terms, the ECtHR makes sure that collectively binding decisions on issues of public interest are made contingent upon standards of political equality”, says Zysset.
The book "The ECHR and Human Rights Theory" builds on Zysset’s doctoral thesis supported by the Swiss National Science Foundation and is published by Routledge (Research in Human Rights Law Series) in October 2016.