Protocol No. 15 to the ECHR: a new era of subsidiarity or a symbolic change?

by | Nov 5, 2021

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About Dilan Gümüştaş

Dilan Gümüştaş is a lawyer at an international law firm in Istanbul. Alongside her arbitration practice, she has a strong interest in human rights law and worked as an intern at the Constitutional Court of Turkey.

Protocol No. 15 to the European Convention on Human Rights came into force in August 2021. It introduced several amendments, including the controversial addition of a recital to the Preamble, which invokes the principle of subsidiarity and the doctrine of margin of appreciation. Although these jurisprudentially developed concepts are well-known to the Convention system, is their written inclusion truly the beginning of a new era of subsidiarity, or just a symbolic change?

The new recital has its basis in the Brighton Declaration adopted at the Brighton Conference in 2012. The Brighton Conference was triggered by national concerns following controversial judgements regarding immigration and prisoner’s voting (see here). It was argued that the European Court of Human Rights (‘the Court’) impinges on the sovereignty of member states and demonstrates a profound level of disrespect for the concept of sovereignty. The United Kingdom proposed the insertion of the principle of sovereignty into the substantive body of the Convention. The eventual compromise reached by member states was to include these principles in the Preamble. Protocol No. 15 reflects this consensus, amending the Convention after almost nine years after the Conference. This has raised debates (see here, and here) about whether the inclusion of these references will have any tangible impact on the Court’s assessment.

From the drafter’s view, the addition of the said principles is chiefly symbolic, and will not impact the Court’s interpretation of the Convention in any way. As stated in the Explanatory Report, the sole intention of these additional principles was to enhance the transparency and accessibility of these characteristics of the Convention system. Despite the purely nominal intentions of these additions, NGOs window maintains that through opting to award this distinction to subsidiarity and the margin of appreciation doctrines, while ignoring other significant principles, the Convention has consequently warped the respective levels of perceived importance of different principles. The legal canonisation of subsidiarity and the margin of appreciation doctrine acts to elevate these concepts through a process that is viewed as a legitimiser. Conversely, the lack of regard paid to other important principles such as proportionality, dynamic and evolutive interpretation, the doctrine of the living instrument, and that the very essence of a right must never be impaired, seemingly indicates these uncodified principles are of lesser importance, regardless of reality. That these other principles were not also granted the same distinction is a matter of concern for human rights protection.

In addition, there is also ambiguity regarding the standards and scope of margin of appreciation, as each member state has a different moral concept. Furthermore, this doctrine does not apply in respect of or to aspects of some rights, and its implication depends on the gravity of the interference. Even if the Brighton Declaration included the phrase that the new recital should be applied “as developed in the Court’s case-law”, Protocol No. 15 lacks such phrase. It is recommended that to prevent these principles from resulting in a weakening of human rights protection, the Court should not alter its longstanding practise in applying them. In fact, if the reference in the Preamble is not interpreted in line with the Court’s well-structured case-law, it can cause uncertainty, leaving it vulnerable to misuse, or even abuse by member states.

Considering the established case-law of the Court, there is little indicating that the Court will grant these principles additional importance just because of their inclusion in the Preamble. Therefore, it would be presumptuous to say Protocol No. 15 has ushered in a new era of subsidiarity. However, the references included in the Preamble cannot be seen as merely symbolic. Although this inclusion may not have a noticeable effect on the Court’s interpretation, their presence in the Convention has now provided a written and stronger basis for member states to request for more respect when enjoying their sovereignty. Whereas the inflationary and unnecessary use of these doctrines has already existed, this inclusion may encourage states demanding even wider margin of appreciation, especially when faced with high-profile court cases that have the potential to affect their societal values, including on matters of immigration, women rights, the LGBTQIA+ community, and ethnic and racial minorities. Although most of this depends on the Court’s ultimate application, and it is difficult to foresee the effect of the new recital on the Court’s assessments, one thing remains certain: in the antagonistic relationship between human rights and state sovereignty, this amendment indeed tips the scale in favour of the sovereign.

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