How Should the European Court of Human Rights Respond to Criticism?

Abstract

This chapter is a comment on Angelika Nußberger’s chapter on the rule of human rights law in Europe in an ever more hostile environment. It argues that the Court, in its effective interpretation, should avoid interfering in issues that are not of such a gravity to merit international supervision. In its evolutive interpretation, the Court should also clarify its use of a European consensus and abandon its unfettered discretion in using international legal instruments for this purpose. This could alleviate uneasiness with respect to the ECtHR as an activist Court. Moreover, the Court should treat states equally with respect to benefitting from the margin of appreciation. However, it is also essential for the Court to ensure that deference to domestic decision-makers does not undermine effective implementation of the ECHR.