Beyond Sovereignty and Nationhood: An Analysis of the Principles Governing the Founding of the European Court of Human Rights and the Legitimacy of its Autonomy and Intervention

The rulings of the European Court of Human Rights (ECtHR) under the European Convention on Human Rights (ECHR) are facing increasing criticism from some contracting states. At the heart of these concerns is the perception that the ECtHR is, in some cases, acting outside its legitimate mandate,by expanding its use of authority beyond the object and purpose of the agreement. While significant work has been published concerning the approach taken by the ECtHR in protecting rights, there is little that addresses the legitimacy of the existing judicial model in terms of the authority initially and subsequently conferred upon the Court by ECHR signatories.

This work provides a critical review and analysis of the authority initially conferred upon the ECtHR by the first signatories and by the subsequent operation and evolution of the ECHR legal system. Findings from the review and analysis of the nature of the ECtHR’s authority are used as the basis for development of an analytical framework for the purpose of assessing the legitimacy of its procedures. The framework is designed to appraise the validity of the criticisms by states and to support the development of a proposed improved judicial model for decision-making. The analytical framework and the corrective model represent the major challenge and originality in the work and the major contribution to knowledge.

Application of the analytical framework and the corrective model to relevant and controversial decisions of the ECtHR demonstrates their value and indicates that in some cases the criticisms made by states appear valid. This evaluation of the corrective model suggests that it is, at the least, of value in support of practical and academic analysis of ECtHR decisions, but also that it maybe a useful element in the development of improvements in the processes and operation of the Court, to enhance legitimacy, consistency and authority in its rulings.

Discussion relating to the potential for wider development of the ECtHR’s processes,beyond the proposed corrective model, is provided under the heading of further work.