The European Court of human rights between dispute settlement and governance

The study is an inquiry into the particularities of the Strasbourg regime of adjudication vis-à-vis general accepted models of adjudication. The general model of adjudication is based on a certain coherent relationship between several constitutive elements: based on a given mandate, a court is seized to settle a dispute and to that end delivers a decision which will consequently orient future interactions and behaviour. After identifying and then un-packing the judicial strategies of the European Court of Human Rights (the Court), the analysis reveals that the Court’s main jurisdictional principle – subsidiarity – is not a unitary concept but a heterogenous concept reflecting various types of review. The subsidiarity’s heterogenous character reflects a ‘mismatch’ between the Court’s mandate (i.e., the powers transferred to the Court) and those actually capitalised by it. Mandate and decision-making capacity are not entirely correlated and this allows the Court’s judges to assume various functions. Moreover, as a result of assuming various functions, the Court also produces various normative outcomes. As a consequence of those multiple outcomes, different models of behaviour and responsibility in the name of human rights are produced and this does not allow the formation of coherent human rights norms. Hence, there are no coherent relationships between the constitutive elements of the Strasbourg adjudicative structure. The explanation provided by the study for this particular state of affairs is that the aim of the Strasbourg regime – as compared to a general model of adjudication – is to produce, to fulfil two types of outcomes: settling disputes while also guiding and controlling the domestic human rights policies and politics of Member States in a governance-like logic. The final output of a Strasbourg decision is not solely that of terminating a dispute. Through a decision, the Court can also influence the nature and scope of rights brought through individual applications, adjust the nature of its functions and of the justice it delivers, and influence the effects of its rulings. Those special features increase the Court’s potential of controlling through legal arguments the human rights policies and politics of the Member States, using arguments of governance which are not specific to the judicial function. The study argues that this governing potential eventually overshadows the Court’s dispute-settlement capacity and renders uncertain the connexion between the scope of the States’ primary responsibility to apply and enforce the Convention at the domestic level and the Court’s final supervision, which is supposed to intervene only as ultima ratio. The study also provides a critique of the process of the reform of the Court and argues that the root cause of the critique and of the lack of prospect of success of that process is the lack of awareness of this inherent overlap between the Court’s dispute-settlement capacity and the ensuing governing potential.


Publication infos:
Geneva, Graduate Institute of International and Development Studies, 2019
Publication year:
2019
Number of pages:
246 p.
PhD Director(s):
Directeur de thèse : Professeur Andrew Clapham
Call number:
HEITH 1300

Note: The status of this file is: restricted


 Record created 2019-03-22, last modified 2019-09-30

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