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REVISITING THE EUROPEAN CONSENSUS IN LIGHT OF THE VCLT
the amendment of the Preamble to the Convention,’ it is important to note what
were the driving forces behind the reform and why the principle of subsidiarity
“has gained an increasingly high profile”.° On the one hand, the Court became
“the victim of its own success” and the excessive backlog of cases hindered the
efficiency of its work;’ on the other hand, some member states fiercely pursued an
agenda aimed at curtailing the role of the Court as an activist defender of human
rights.* The current era was labelled as the “age of subsidiarity”,? which resulted
in bringing “the centre of gravity of the Convention system” in principle closer to
those benefitting from the protection.’°
The effective implementation of the Convention is based on a “shared
responsibility” between the Court and the member states: ideally, domestic
authorities function as ‘first-line defenders’, and in line with the principle of
subsidiarity, the Court’s work is limited to its supervisory task.!' While the
notion of shared responsibility is uncontested, its practical application constantly
confronts the Court with a dilemma: should it assert its standard-setting role,
or should it rather remain deferential to the choices of the domestic authorities?
National sovereignty and the legitimate interest of victims pull the Court in
opposite directions: on the one hand, it is expected that the ECtHR respects (and
not extends) the obligations states accepted upon ratification, on the other hand,
it has to provide effective and up-to-date protection for individual rights.” The
interpretative methods and doctrines that serve the latter end are frequently
Protocol 15 amended the Preamble to the ECHR with explicit references to subsidiarity and
the margin of appreciation.
Alastair Mowbray, Subsidiarity and the European Convention on Human Rights, Human
Rights Law Review 15 (2015), 313-341.
Lynne Turnbull, A Victim of its Own Success: The Reform of the European Court of Human
Rights, European Public Law 1 (1995), 215-225, 219, or Laurence Helfer, Redesigning the
European Court of Human Rights: Embeddedness as a Deep Structural Principle of the
European Human Rights Regime, European Journal of International Law 19 (2008), 125¬
159, 126.
Nikos Vogiatzis, When ‘Reform’ Meets ‘Judicial Restraint’: Protocol no. 15 Amending the
European Convention on Human Rights, Northern Ireland Legal Quarterly 66 (2015),
127-149, 129.
Robert Spano, Universality or Diversity of Human Rights? Strasbourg in the Age of
Subsidiarity, Human Rights Law Review 14 (2014), 487-502.
Dean Spielmann, Whither the Margin of Appreciation? Current Legal Problems 67 (2014),
49-65, 65.
See further: Janneke Gerards, The European Court of Human Rights and National Courts:
Giving Shape to the Notion of ‘Shared Responsibility’ in Janneke Gerards — Joseph Fleuren
(ed), Implementation of the European Convention on Human Rights and of the Judgments
of the ECtHR in National Case-Law, Cambridge, Intersentia, 2014, 13-94, 32-34.
Francois Ost, The Original Canons of Interpretation of the European Court of Human
Rights in Mireille Delmas-Marty (ed), The European Convention for the Protection of
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