Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights

Posted: 9 Apr 2008

Date Written: 2008

Abstract

An international tribunal such as the European Court of Human Rights is often lauded for its protection of human rights. Yet, there is room for improvement. The Court's adjudication style would benefit from more structured balancing of competing inter-ests. Not only would greater structure serve to enhance the Court's efficiency and promote legal certainty, but it would also help to clarify the Court's subsidiary role in relation to national authorities when it comes to the protection of human rights. In bringing more structure to the Court's decision-making process, inspiration can be drawn from the debate regarding the balancing/categorization continuum to be found most notably in United States constitutional law. Positioning the Court's jurispru-dence at either end of this continuum would neither serve to enhance its decision-making, nor would it reflect reality. Instead its method of adjudication should seek to reconcile the best of both extremes by passing judgments that not only give guidance to how future balancing exercises should be conducted, but also recognize national authorities' margin of appreciation in applying the European Convention on Human Rights. Three case-studies are explored to conceptualize structured balancing, namely questions regarding the Islamic headscarf, physician-assisted suicides and the dissolu-tion of political parties.

Keywords: human rights, constitutional law, balancing, categorisation

Suggested Citation

Sottiaux, Stefan and van der Schyff, Gerhard, Methods of International Human Rights Adjudication: Towards a More Structured Decision-Making Process for the European Court of Human Rights (2008). Hastings International and Comparative Law Review, Vol. 31, No. 1, 2008, Available at SSRN: https://ssrn.com/abstract=1118024

Stefan Sottiaux (Contact Author)

University of Antwerp ( email )

Prinsstraat 13
Antwerp, 2000
Belgium

Gerhard Van der Schyff

Tilburg Law School ( email )

PO Box 90153
5000LE Tilburg
Netherlands

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