Introduction

The European Court of Human Rights (ECrtHR) has come under serious attack. It is accused of encroaching far too much on state sovereignty and showing a lack of respect for the domestic context and the way in which national authorities balance human rights with other legitimate interests. This is considered all the more objectionable because of the Court's lack of democratic accountability . At bottom, this critique raises the issue of the legitimacy of the Court as a supranational, judicial supervisor of national state powers.

An initiative to contain the Court's reach is included in the 15th Protocol to the European Convention on Human Rights (ECHR) which is open for ratification. This protocol results from the deliberations at several high level conferences on the future of the Court, culminating in the 2012 Brighton Declaration. The latter declares that the Conference ‘welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation , and encourages the Court to give great prominence to and apply consistently these principles in its judgments’. As a follow up to this, the 15th Protocol provides for the inclusion of a reference in the Preamble of the ECHR to the principle of subsidiarity and to the margin of appreciation that the states parties enjoy. Though this inclusion, being placed in the preamble, is legally speaking not compelling, the political message it sends is very clear. The Court should be much more respectful of a wide margin of appreciation to be left to the national authorities and apply it in its case law on a regular basis.

The approach taken in the 15th Protocol ties in with a classical notion of the separation of powers that requires courts to show deference to the choices made by democratically elected bodies and to stay away from political issues. Starting from such a notion, this is all the more important as the European Court of Human Rights is an international judicial body and the Convention system lacks a legislative power that accompanies and checks its judiciary power. As Möllers puts it in his analysis of the problem facing the European Court of Human Rights notwithstanding the Convention system's success in propagating human rights in Europe: