Subsidiarity, margin of appreciation and international adjudication within a cooperative conception of human rights

Abstract

The projected inclusion of the subsidiarity principle and the margin of appreciation doctrine in the preamble to the European Convention on Human Rights (ECHR) is a legal turn that deserves special attention. Is it a welcomed reform which will enhance the Strasbourg Court's often-questioned legitimacy vis-à-vis member states? Does it represent, as some non-governmental organizations have claimed, a setback for human rights in Europe? This article elaborates on these questions by first entering into the current debate on the nature of human rights. I suggest that a "cooperative" political understanding of these rights, which is based on claims of relational justice, is a suitable ground for a normative theory of international human rights adjudication. I then use this political conception to present a non-statist reading of the subsidiarity principle, which is in accord with an incrementalist approach to human rights requirements and with a rationalized version of the margin of appreciation doctrine. My holistic reading is consistent with the axiological aims of the ECHR system as a regional driver of human rights protection without damaging Strasbourg's legitimacy.