Reforms to Lessen the Influence of the European Court of Human Rights: A Successful Strategy?

Abstract:

This article focuses on reform efforts at the national and European level to lessen the influence of the Strasbourg Court's case law. The article aims to determine to what extent this strategy will be successful. On the one hand, two reform proposals to shield the influence of the European Court of Human Rights (ECtHR) through changing the dynamics at the national level are examined, namely the pending proposal to replace the Human Rights Act 1998 (HRA) with a home-grown Bill of Rights and the pending proposal in the Netherlands to extend the ban of judicial review to international treaties. The UK reform proposal is the most likely to come into being. The Dutch reform proposal should instead be interpreted as a warning shot, since it is very unlikely to pass. Irrespective, this reform proposal would be a successful, albeit very drastic, measure to reduce the influence of the Strasbourg Court. On the other hand, current efforts to reform the European level of rights protection are analysed with an emphasis on reform proposals pressing the need for more subsidiarity and a broader margin of appreciation. These efforts resulted in Protocol 15, which has the ability to lessen the influence of the Strasbourg Court, although the Court has plenty of tools available to not let Protocol 15 result in lessening of its influence.