The Tension between the National and ECHR Human Rights Adjudication: A Normative Account

Alon Harel*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

This article examines cases of conflicting decisions between the ECHR and State Courts. I argue for ‘discordant adjudicative parity.’ According to discordant adjudicative parity, there are compelling non-instrumental reasons for having both international adjudicative institutions and state adjudicative institutions that can make binding, conflicting decisions. Binding decisions by international adjudicative institutions embody the understanding that human rights are duties rather than decisions that are voluntarily undertaken. State Courts facilitate deliberative engagement on the part of citizens as, ultimately, the citizens are in charge of States’ courts. I use this analysis to justify the principle of subsidiarity in European law.

Original languageAmerican English
Article numberngad033
JournalHuman Rights Law Review
Volume24
Issue number1
DOIs
StatePublished - 1 Mar 2024

Bibliographical note

Publisher Copyright:
© The Author(s) [2023]. Published by Oxford University Press. All rights reserved.

Keywords

  • European Convention on Human Rights
  • discordant adjudicative parity
  • international human rights
  • margin of appreciation
  • subsidiarity principle

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