The future of the European Court of human rights-subsidiarity, process-based review and the rule of law

Abstract

The current era in the life of the European Convention on Human Rights is a transformative one. The author, a serving judge of the Strasbourg Court, thus finds it opportune to look back in time, consider the present and reflect on the future. In the article, it is argued that the last 40 years or so constituted the Court's 'substantive embedding phase'. This phase has now in general shifted towards a new historical era, the 'procedural embedding phase', which is analysed in detail. During this latter phase, the Court has begun to realign its project attempting to trigger increased engagement with the Convention by national authorities using a mechanism termed 'process-based review'. The overall aim is to secure a higher and more sustainable level of Convention protections within the States subject to European supervision. However, within this process-based review mechanism, national decision-makers have to be structurally capable of fulfilling the task of effectively securing human rights. This means that the foundations of the domestic legal order have to be intact. States that do not respect the rule of law cannot expect to be afforded deference under process-based review in the age of subsidiarity.