The Procedural Approach of the European Court of Human Rights: Between Subsidiarity and Dynamic Evolution

Abstract

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.

Comprehensive Approaches in the Global Compact for Migration and the EU Border Policies: A Critical Appraisal

“…Thus, the following subsections attempt to capture the inherent tension between the old logic of fragmentation and the new search for policy coherence through comprehensive approaches. On the one hand, they show how the lack of political consensus over the normative or logical differentiation (Elias and Lim 1997) of the GCM's commitments, together with a defective proceduralisation of the mechanisms and indicators to make migration management more unbiased (Kleinlein 2019), reproduce the fragmentation of IML within the GCM. On the other, analysis shows how the very same idea "that we are all countries of origin, transit, and destination" (Objective 23, para.…”

Citizens or migrants? Precarious residence in the context of EU citizenship

“…A case in point is, again, provided by Dano, where, as noted above, the CJEU did not require German authorities to assess the number and length of the applicant's previous stays in the country, her private and family ties with both the host country and the country of origin, or the fact that her son was born in the host State. Whereas the result of the balancing exercise is, in principle, for domestic courts to perform (particularly considering Strasbourg's "procedural turn" (Kleinlein, 2019;Arnardóttir, 2017)), 59 the fact that no individualised proportionality assessment seems to be required at all by the CJEU in cases like Dano, Alimanovic or García-Nieto may end up in Article 8 violations, and hence human rights litigation might prove a fruitful route to explore. 60…”