What’s Cooking? General Measures in the Case Law of the European Court of Human Rights

Abstract

Strategic deference is used by the European Court of Human Rights (Court) to keep the United Kingdom on board. This can be explained as a means to address autocratic strategies, but is harder to justify where it differentiates between consolidated democracies. To preserve authority and credibility, the Court must maintain an appearance of consistency. To this end, the ‘procedural turn’ in the Court’s case law has been presented as a development of the subsidiarity principle, consistent with earlier case law. In this paper, however, the case is made that procedural arguments are used (or avoided) in fundamentally different ways, reflecting very different mindsets. The paper distinguishes six approaches to so-called ‘general measures’ and explains in each case the underlying attitude towards national member states. By lumping them all together, strategic deference is concealed, allowing for a more favourable treatment of the UK while keeping up appearances that all contracting parties are treated alike.