From compromise to principle: Revisiting the concept of subsidiarity and its role in EctHR reform

Abstract

Purpose of this article is to revisit the traditional notion of subsidiarity as a principle based on a political compromise aimed at conservation of state sovereignty and affirmation of pluralism and diversity by pointing out that subsidiarity has become a deep structural principle embedded in Convention's supervisory mechanism which outlines the role of the Court in European human rights regime. Furthermore article will argue that subsidiarity incorporates both ascending (negative) and descending (positive) element while questioning validity of the member states argument that Court is overstepping its own competences prescribed by the Convention. Lastly author will elaborate how both, negative and positive, aspects of principle of subsidiarity can be used in resolving ECtHR backlog and explore what instruments are at Court's disposal when asserting 'positive subsidiarity'.

Keywords

• European court of human rights
• subsidiarity
• EctHR reform