New publication: On ‘judicial innovation’ and self-restraint in the ECtHR

My latest article, co-authored with Kanstantsin Dzehtsiarou (Surrey, but soon to be of Liverpool) has been published in advance access format by the Human Rights Law Review. The paper is entitled “Managing Judicial Innovation in the European Court of Human Rights” and can be download (££) here. The abstract is as follows:

Since its establishment, the European Court of Human Rights has developed into a constitutionalist actor within and beyond the continent of Europe; a development that is in no small part due to judicial innovations, such as evolutive interpretation. Such innovation has resulted in a tension between the Court and the contracting parties that may conceivably call into question states’ diffuse support for the Court. We argue that this tension is addressed by the Court by means of a nascent model of judicial self-restraint discernible from the Court’s docket management, its cognisance of non-legal factors in particularly contentious cases and its use of consensus-based interpretation. While arguably necessary, such a model is not cost-free; rather, it may have implications for the quality of the Court’s decision-making and its standing in the eyes of other stakeholders, such as non-governmental organizations and complainants.

On occasions when I have presented this paper, people have sometimes asked ‘how can you establish–how can you prove–that the judges are engaged in ‘self restraint’ when they do these things you identify here?’ and the answer, of course, is that one can’t. However, one can advance a hypothesis or a reading of trends as one sees them in the Court’s work. That is what we do in this article. I see this reading as potentially useful because it connects well with the particular nature of a subsidiary court (I have argued before that the Court should focus on constitutionalist cases rather than questions of ‘mere’ adjudication), while also making very clear the challenges of legitimacy across stakeholders that the (over burdened, under resourced) ECtHR experiences. As we put it in the conclusion:

Judicial innovation is crucial to the development of the European Convention on Human Rights, but this does not mean that it does, can or must be present in every case upon which the Court adjudicates. Given the subsidiary and international nature of the Court, constitutionalist development of the Convention through judicial innovation necessarily creeps only slowly in the European Court of Human Rights. Even then, the speed at which it creeps, the areas in which it occurs, and the reaction to same from contracting parties are all matters that must be taken into account by the Court when determining the extent to which to be innovative in any particular case. In this paper we have argued that some mechanisms of managing judicial innovation are, thus, required. We contend that in trying to engage in progressive constitutionalism while maintaining the diffuse support of contracting parties the ECtHR exercises judicial self-restraint by carefully managing its docket, being cognisant of non-legal factors of importance to and within the states, and selectively deploying consensus decision-making to determine the speed of change. This can, in some cases, mean that outcomes are reached that create an uneven constitutionalism and are somewhat unsatisfactory from the perspective of litigants and the human rights community, who tend to expect the Court to engage as fully as possible in the advancement and development of rights. However, without a somewhat pragmatic and self-restrained approach, the negative consequences of judicial innovation and such constitutionalist urges may run the risk of undermining states’ support for the Court and would, in turn, be detrimental to the Court in trying to maintain its effectiveness in rights protection on a broad scale. As a result, as outlined above, our claim is that the Court carefully manages judicial innovation through a nascent model of judicial self-restraint.

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