The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash

AbstractAlthough multiparty elections are not explicitly required by international human rights instruments or the European Convention on Human Rights (ECHR), certain human rights provisions have been interpreted as leading to such a requirement. While a democratic interpretation of human rights law has been settled in the ECHR framework, it remains disputable at the universal level. Despite numerous references to democracy in the documents adopted in the UN framework in the post-Cold War era, this article argues that an explicit link between international human rights law and multiparty elections has yet to be established. On the other hand, such a link has been developed by the European Court of Human Rights (ECtHR). Multiparty elections are considered to be part of the European public order. Moreover, the ECtHR has shown that it understands democracy beyond the existence of electoral procedures. But the role and understanding of democracy within the ECHR cannot be universalized.

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MARGINS OF APPRECIATION: CULTURAL RELATIVITY AND THE EUROPEAN COURT OF HUMAN RIGHTS IN THE POST-COLD WAR ERA

International and Comparative Law Quarterly ◽

10.1093/iclq/lei003 ◽

2005 ◽

Vol 54 (2) ◽

pp. 459-474 ◽

Cited By ~ 15

Author(s):

James A Sweeney

Keyword(s):

Human Rights ◽

Cold War ◽

European Convention ◽

Council Of Europe ◽

Post Cold War ◽

Cultural Relativity ◽

European Court ◽

Margin Of Appreciation ◽

Protection Of Human Rights ◽

The Cold War

The number of states participating in the Council of Europe's system for the protection of human rights has grown rapidly over recent years. Established in 1949 with an initial membership of 10 states, the Council has now grown to a membership of 46,2dwarfing the EU in its geographical reach. The most significant period of enlargement has been since the end of the Cold War as the formerly Communist states from central and eastern Europe flocked to the Council of Europe seeking assistance with the process of democratisation. The Council's most prominent human rights treaty, the European Convention on Human Rights, has entered into force for all but one of the 46 member states.3This paper questions whether the European Court of Human Rights' recognition of a national ‘margin of appreciation’ has allowed these new Contracting Parties too much leeway in the way they choose to protect, or more specifically, to limit, the exercise of human rights.

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