Exhausting domestic remedies or exhausting the rule of law? Revisiting the normative basis of procedural subsidiarity in the European Human Rights System
Q2 Social Sciences
引用次数: 0
Abstract
ABSTRACT In recent years, the case law of the European Court of Human Rights has seen a new normative turn in grounding subsidiarity when interpreting the substantive rights in the European Convention on Human Rights. The Court has placed emphasis on subsidiarity considerations when the respondent state can demonstrate the democratic and rule of law pedigree of its rights-interfering actions. The Court’s interpretation of the procedural rule of the exhaustion of domestic remedies has not caught up with this new normative turn. This article argues for the ‘normative realignment’ thesis. Grounds for substantive subsidiarity are normatively defensible on democracy and rule of law considerations, and grounds for procedural subsidiarity can and should be more closely aligned with the same considerations.耗尽国内救济还是耗尽法治?重新审视欧洲人权体系中程序辅助性的规范基础
摘要近年来，欧洲人权法院的判例法在解释《欧洲人权公约》中的实质性权利时，出现了新的规范性转变，以辅助性为基础。当被告国能够证明其干预权利行动的民主和法治血统时，法院强调辅助性考虑。法院对用尽国内补救办法程序规则的解释没有赶上这一新的规范性转变。本文支持“规范调整”的论点。从民主和法治的考虑来看，实质性辅助性的理由在规范上是可以辩护的，而程序辅助性的依据可以而且应该与同样的考虑更加紧密地一致。
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来源期刊
Transnational Legal Theory
Social Sciences-Law
CiteScore
2.10
自引率
0.00%
发文量
7
期刊介绍：
The objective of Transnational Legal Theory is to publish high-quality theoretical scholarship that addresses transnational dimensions of law and legal dimensions of transnational fields and activity. Central to Transnational Legal Theory''s mandate is publication of work that explores whether and how transnational contexts, forces and ideations affect debates within existing traditions or schools of legal thought. Similarly, the journal aspires to encourage scholars debating general theories about law to consider the relevance of transnational contexts and dimensions for their work. With respect to particular jurisprudence, the journal welcomes not only submissions that involve theoretical explorations of fields commonly constructed as transnational in nature (such as commercial law, maritime law, or cyberlaw) but also explorations of transnational aspects of fields less commonly understood in this way (for example, criminal law, family law, company law, tort law, evidence law, and so on). Submissions of work exploring process-oriented approaches to law as transnational (from transjurisdictional litigation to delocalized arbitration to multi-level governance) are also encouraged. Equally central to Transnational Legal Theory''s mandate is theoretical work that explores fresh (or revived) understandings of international law and comparative law ''beyond the state'' (and the interstate). The journal has a special interest in submissions that explore the interfaces, intersections, and mutual embeddedness of public international law, private international law, and comparative law, notably in terms of whether such inter-relationships are reshaping these sub-disciplines in directions that are, in important respects, transnational in nature.
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