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Often accused of illegitimate interference with its member states' political choices, the European Court of Human Rights, like other international institutions operating outside of any democratic polity, faces serious concerns about its democratic legitimacy. The subsidiarity principle - enshrined in the Preamble to the European Convention on Human Rights like in many other international treaties - thus emerged in response to calls for the Court to be markedly subsidiary to its member states and their democratic authorities.
Exploring the subsidiarity principle as underpinning the entire European Convention on Human Rights system, Subsidiarity, Legitimacy, and the European Court of Human Rights sketches out the historical, political, and legal contestations through which this principle gained prominence. It presents two key arguments: first, that the Court's subsidiary role is justified as it brings democratic politics into the Convention system; and second, that this role explains and justifies the relative lack of principled - and highly casuistic - jurisprudence. The Court's casuistry is a prerequisite of the two-way process that allows a democratic bottom-up development of a Convention law that the Court may, hence legitimately, reimpose on the states.
Subsidiarity, Legitimacy, and the European Court of Human Rights is the first book-length analysis of the ECHR from a separation-of-powers perspective, offering a compelling defence of subsidiarity as crucial to the democratic legitimacy of the ECHR, which contains insights relevant to many international treaty systems.
This is an open access title available under the terms of a CC BY-NC-ND 4.0. licence. It is free to read on the Oxford Academic platform and offered as a free PDF download from OUP and selected open access locations.
