Blanket Bans, Subsidiarity, and the Procedural Turn of the European Court of Human Rights
Bibliographic Data
| ID | 9933396 |
|---|---|
| Authors | Peter Cumper (University of Leicester, corresponding author), Tom Lewis (0009-0002-1198-1273, Nottingham Trent University) |
| Year | 2019 |
| Volume | 68 |
| Issue | 3 |
| Pages | 611-638 |
| Publication date | 2019-07-01 |
| Peer Reviewed | Yes |
| Open Access | Yes |
| Type | ARTICLE |
| Venue | International and Comparative Law Quarterly (JOURNAL) |
| Journal identifiers | ISSN: 0020-5893 • E-ISSN: 1471-6895 |
| Publisher | Cambridge University Press (CUP) (PUBLISHER) |
| DOI | 10.1017/s0020589319000186 |
| OpenAlex | W2945899388 |
| Language | EN |
| Citations received | 2 |
| References cited | 25 |
In recent years several commentators have identified a ‘procedural turn’ by the European Court of Human Rights whereby it places increased emphasis on the presence or absence and/or quality of legislative and judicial deliberations at domestic level when assessing the proportionality of allegedly rights-infringing measures. One area where the procedural turn has been particularly apparent is in relation to cases involving blanket bans on activities protected by the European Convention. On most accounts this move to ‘process-based review’ is causally linked to the principle of subsidiarity. In this article it is argued that whilst the shift to process-based review may generally have sound justifications in terms of the subsidiary role of the European Court as compared to States parties to the Convention, there are nevertheless several ironic downsides to this approach in the case of blanket bans, in terms of the certainty and predictability of the Court's case law. Furthermore, and more critically, there may be serious consequences in terms of the rights protection afforded to vulnerable minorities within States who may be at the receiving end of such legislative blanket bans
Business · Convention · European union · Fundamental rights · Human rights · International trade · Law and economics · Legislature · Political science · Proportionality (law · Sociology · Subsidiarity · European and International Law Studies · Judicial and Constitutional Studies · Law · Ombudsman and Human Rights
Political Constitutionalism
The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)
The Core of the Case against Judicial Review
Proportionality and the Rule of Law
The Future of the European Court of Human Rights—Subsidiarity, Process-Based Review and the Rule of Law
The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments
The European Court of Human Rights and National Courts
Structuring evaluations of parliamentary processes by the European Court of Human Rights
Consensus and Contestability
The Democratic Legitimacy of International Human Rights Conventions
Subsidiarity Post-Brighton
A Defence of the Margin of Appreciation and an Argument for Its Application by the Human Rights Committee
The Procedural Approach of the European Court of Human Rights
The Margin of Appreciation Doctrine in the European Court of Human Rights
The Political Constitution
Animal Defenders International v U nited K ingdom
Subsidiarity and the European Convention on Human Rights
Universality or Diversity of Human Rights
| Unique citing works | 2 |
|---|---|
| Citations per year | 0,5 |
| Citation span | 2022 - 2022 (1) |
| Citation velocity | historical |
| Highly cited | No |
| Citation types | Neutral: 2 |