Constructive

Human rights

Process (computing)

Law and economics

Margin of appreciation

Operating system

International law

Computer science

Democratic legitimacy

Subsidiarity

Business

International human rights law

Politics

Convention

Political science

Legitimacy

Democracy

Economic policy

Sociology

European union

International and Comparative Law Quarterly

This article explores how a procedural approach in the case law of the ECtHR combines subsidiarity and progressive development of international obligations. Rather than constituting a simple retreat from substantive commitments, it renders the obligations of Conventions States more flexible and has the potential to enhance the democratic legitimacy of the Court's rulings. This article first sets out various aspects of proceduralization in international human rights law. This is followed by a discussion of how procedural approaches are linked to subsidiarity. In the case law of the ECtHR, procedural approaches facilitate dynamic evolution, both in the practice of Convention States (analytic or bottom-up approach) or by the Court itself (constructive or top-down approach). This interaction of the procedural approach and arguments based on European Consensus allows the ECtHR and domestic institutions to fulfil their ‘shared responsibility’ for the effective protection of human rights in Europe.

THE PROCEDURAL APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS: BETWEEN SUBSIDIARITY AND DYNAMIC EVOLUTION