Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?

Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human... ABSTRACT Has the Brighton Declaration produced a New Deal on European human rights by assigning a new and more central role to national legal and political institutions and by demanding greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), this article concludes that, after the Brighton Declaration, the ECtHR is indeed providing more subsidiarity. The Court now makes greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly regarding two areas of law: Article 8 on the right to privacy and Article 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is not conferred on all Member States equally. The old, Western Member States are generally the greatest beneficiaries of the ECtHR’s new jurisprudential directions. But the analysis also demonstrates that, contrary to popular belief, the most vocal critics of the system are not given preferential treatment. A final, more general conclusion that follows from these findings is that the ECtHR is receptive to political signals and does not, as is often claimed, operate in a political vacuum. Although currently merely soft law documents, the Brighton Declaration and its associated Protocols, by precipitating change at the Court, have achieved exactly what they set out to do. This has theoretical implications for the understanding of the evolution of international courts. 1. Introduction In April 2012, the governments of the 47 Member States of the Council of Europe (CoE) adopted the Brighton Declaration, which provides a roadmap for reform, in the short term, of the European human rights regime.1 One important circumstance that may have prompted the reform was the very high number of cases pending before the court—some 150,000 in 20122; another was the growing discontent in certain Member States with the European Court of Human Rights (ECtHR/Court), with its rulings, and even with its judges.3 Although discontent was particularly widespread in the UK stemming from the political pushback against Hirst v the United Kingdom (2),4 the British initiative eventually found support among the other Member States, albeit in the toned down version that made it into the resulting Declaration.5 Even this outcome was surprising for many in the broader human rights community, especially since the Declaration was not limited to institutional matters—it also directly criticized the quality of both judgments and judges of the ECtHR.6 This was clearly unprecedented, and set the tone for a more profound reshaping of human rights in Europe. The Brighton Declaration most of all seeks to induce change in the balance between European and national institutions in the protection of human rights. Although the Declaration at times seems to look in several directions at once,7 its main message is that national institutions, ranging from courts and human rights institutes to parliaments, should play a more substantial role in interpreting and developing the European Convention of Human Rights (ECHR/Convention).8 Now, 4 years on, two additional Protocols (Protocols 15 and 16) and a follow-up Declaration, the Brussels Declaration (2015) focusing on the implementation of judgments by the ECtHR, have been adopted. In addition, much time has been spent in various academic and professional settings and outlets discussing the future of the Court in both the short and the long term. The lingering question is however whether all this activity has actually brought about the intended consequences: has the balance within the European human rights space shifted in favour of national institutions? This article takes up the issue by asking the broader question of whether the ‘rebalancing’ in favour of national institutions brought about by the Brighton Declaration has resulted in a ‘New Deal’ on human rights in Europe. Posing the question in such politically loaded terms emphasizes that the intended outcomes of the Brighton Protocol are far more pervasive than any of the many more technical adjustments made to the Court in previous reforms and protocols. In other words, the intended outcome of the Brighton Declaration is a structural change within the European human rights space, perhaps even a fresh start. The Court is to play a central, albeit more detached role. That role is also seemingly more restricted: fewer cases will be heard—access to the Court will be limited by procedural means (Protocol 15 and Brighton Declaration); the Court will allow the Member States a wider margin of appreciation as reflected by the addition of the principle of subsidiarity to the preamble of the Convention (Protocol 15 and Brighton Declaration), a cornerstone of the revamped regime; the Court will provide guidance to national institutions through an advisory mechanism, making them better able to adjudicate cases without resorting to the ECtHR as a last instance adjudicator (Protocol 16 and Brighton Declaration). Although other additional points are made in the Brighton Declaration, its vision of European human rights is, in a nutshell, that although the ECtHR shall maintain its authority, it will do so while exercising less power;9 that is, it shall remain the final arbiter of European human rights, especially where serious or widespread violations and principled issues of interpretation are concerned, but it is to be assumed that an increasing number of cases will be finally and conclusively settled by the newly empowered national institutions. Moreover, the Court’s exercise of oversight might be limited to what one critic of the Brighton Declaration has aptly termed an ‘outer procedural control’ as opposed to ‘inner material’ oversight.10 As opposed to the new access criterion of ‘significant disadvantage’, which was introduced prior to the Brighton Declaration in Protocol No 14 (2004—in force 2010), and which allows for quicker dismissal of unmeritorious cases, none of the changes introduced by the Brighton Declaration in the Protocol Nos 15 and 16 have yet entered into force. Considering how difficult it was to convince the Member States to ratify Protocol 14—Russia delayed ratification for 6 years—it is possible that the new Protocols might remain paper tigers for quite some time. Nevertheless, and this is our central hypothesis, the Brighton Declaration might nonetheless have triggered change. Although European human rights may not have changed, legally speaking, discourse on them undoubtedly has, and this may already have induced legal change at the Court. This article investigates whether this is indeed the case, or alternatively, whether the current ECHR regime has perhaps managed to withstand the robust criticism and calls for change expressed in the Brighton Declaration. To test for such potential changes to the European protection of human rights, this article explores a set of empirically detectable effects in the entire data set of the case law of the Court as a means of comparing its case law before and after the Brighton Declaration.11 More specifically, the article analyses structural and quantitative changes in the case law of the Court, including the degree to which it may have widened the margin of appreciation in favour of national institutions, and whether there is any perceptible variation within subfields of the law and between states in this regard. Posing the question of the effect of the Brighton Declaration in these terms speaks to at least three strands of literature. The first is the large body of international law scholarship on the legal standing and impact of soft law.12 Although the Brighton Declaration has been legalized in two additional Protocols (Protocols Nos 15 and 16), it remains strictly speaking a declaratory document at this stage. Yet it very clearly conveys the position held by the governments of the Member States, at least in 2012, and might therefore have triggered changes at the Court in the direction articulated in the Declaration. Our investigation into the possible effects of this declaratory document, therefore, provides an empirical assessment of the effect of soft law. The basic question is whether such political signals cause legal practices to change at a well-established international court. The second relevant body of literature concerns the potential impact of ‘exogenous shocks’ and ‘critical junctures’ on international organizations and courts. The Brighton Declaration was, in many observers’ view, much more than yet another soft law declaration; it was an exceptionally frank political statement on behalf of the Member States directed towards the Court that demanded a new balance in European human rights protection: a new dawn in which the Court would play a different and more limited role. This might well be expressed in terms of theories of external shock or critical juncture since the criticism articulated both before, during and after the Brighton meeting was met with a great deal of astonishment in Strasbourg, as well as in the broader human rights community.13 This analysis is, however, not centred on developing a theory of exogenous shocks and critical junctures. It is instead a continuation of scholarship that has looked into how international courts only possess relative autonomy vis-à-vis their operational environments. Scholars have, for example, demonstrated how geopolitical transformations have had an impact on and changed the practices of the ECtHR14 over time, or how the more specific event of the financial crisis of 2007/08 influenced the jurisprudence of the Court of Justice of the European Union (CJEU).15 This scholarship generally argues that international courts operate within global frameworks of power and ideas that tend to structure their actions. Consequently, international judicial actions do not take place in a vacuum but are reflective of broader sociopolitical transformations. This article contributes directly to that scholarship by seeking to identify the potential effects of the 2012 Brighton Declaration on the subsequent practices of the ECtHR. This article contributes to yet a third strand of scholarship on the development of the related notions of subsidiarity and margin of appreciation at the ECtHR. Scholars, as well as some ECtHR judges, have suggested that the ECtHR is now showing greater deference to national law and politics following the Brighton Declaration. One Strasbourg judge, painting with broad strokes in analysis of what he terms the ‘Age of Subsidiarity’, has suggested that a more procedural approach is gaining a foothold at the Court in response to the Brighton Declaration.16 Accordingly, the Court is allowing Member State institutions—both political and legal—a wide(r) margin if they follow procedures that ensure due assessment in line with the relevant ECtHR case law. Legal scholars have paid particular attention to a series of judgments issued in the aftermath of the Brighton Declaration that seem to indicate a widening of the margin of appreciation.17 Although scholars appear to be leaving all-encompassing generalizations to the judges, there seems to be agreement that, at least in certain cases, the Court is now allowing Member States a greater margin following the Brighton Declaration. The current article’s contribution to this scholarship provides the first systematic empirical exploration of the relevant case law before and after Brighton regarding subsidiarity and the margin of appreciation in view of the new priorities and policies articulated in the Brighton Declaration.18 The structure of this article reflects the outlined analytical approach. It starts out with an overview of the Brighton Declaration—its political background and context as well as its main contents—in order to identify the causal factors that could encourage potential change at the Court. The article then presents an empirical analysis of the Court’s evolution before and after Brighton in three analytical dimensions: The Court’s caseload, the degree to which the margin of appreciation doctrine has changed, and whether there is variation in its application within subfields of law and between Member States in this regard. The article concludes with a discussion of the empirical analysis in relation to the existing scholarship introduced above. 2. The Brighton Declaration At a Glance The ECtHR has been criticized at various moments in its history, notably by governments in response to adverse judgments. Although the Member States have put heat on the Court on previous occasions,19 the discourse both immediately before and after the Brighton Convention was unprecedented. Criticism was not only levelled by politicians weary of occasionally being overruled in Strasbourg, but also by senior members of the bar of the various Member States.20 And nowhere was the tone shriller than in the UK. According to one scholar, Colm O’Cinneide: The manner in which the UK’s presidency of the Council of Europe coincided with a domestic political backlash against the Court has altered the internal dynamics of the Interlaken reform process: the legitimacy of the Court’s role has been called into question to an unprecedented degree, and new tensions have emerged in the relationship between national authorities and the Court.21 The Brighton Declaration was thus not only aimed at the usual legal-technical issues, but also questioned the political role of the Court. More specifically, the Brighton Declaration was not limited to re-legitimizing the court by making it more effective; it targeted the substance of the judgements, the quality of its judges, and, not least, the power of the Court vis-à-vis national institutions. Whereas the Interlaken Conference Declaration (2010) introduced subsidiarity as a tool for limiting the case-(over)load of the Court, the Brighton Conference spoke not only of more subsidiarity but also of more robust subsidiarity: it was a showdown with the ways the Court had accumulated power, and an attempt to renationalize some of that power over human rights. This is explicitly stated in a number of places in the Declaration. The quality of the Court’s judges is singled out when it is noted that the ‘authority and credibility of the Court depend in large part on the quality of its judges and the judgments they deliver’ (para 21). The Declaration welcomes the new Guidelines on the selection of candidates and encourages the States Parties to implement them (para 25.a), and invites the Parliamentary Assembly and the Committee of Ministers to take initiatives with regard to improving the procedures for electing judges (para 25.b). Similarly, the Brighton Declaration addresses the quality of the Court’s judgments (para 23), calling for legal certainty through ‘clear and consistent’ judgments. The Declaration also indicates dissatisfaction with the dynamic approach sometimes employed in the Court’s rulings (para 25.c). In the context of this fairly robust critique, the Brighton Declaration reveals the significant frustration with the Court on the parts of governments. In practice, a long list of more technical suggestions is put forward that all seek to restrict and/or refocus the Court, including: Exploiting the full potential of Protocol No 14 (para. 6); Giving greater prominence to the principle of subsidiarity/margin of appreciation (para 12.a, b); Adopting a strict approach to manifestly ill-founded applications (para 15.d); Allowing governments to request a separate decision on admissibility (para 15.f); Tightening the requirement for the exhaustion of domestic remedies (para 15.g); Expanding the scope of committees’ decisions under Article 28, para 1 (para 20.f); Simplifying the application procedures (para 20.g); Amending the Rules of Court to make it obligatory for Chambers to relinquish jurisdiction to Grand Chambers when departing from settled case law (para 23); and Amending the Rules of Court to include vice-presidents of Sections in the Grand Chamber (para 25.e). The Brighton Declaration requests the drafting of additional protocols reflecting these proposals. The now finished Protocols No 15 and No 16 make the following changes as they: Introduce national courts’ access to advisory opinions from the Court (Protocol No 16; Brighton, para 12.d); Introduce a reference to the principle of subsidiarity and the margin of appreciation in the Preamble (Protocol No 15, Article 1; Brighton, para 12.b); Introduce an age limit for the appointment of judges (Protocol No 15, Article 2; Brighton, para 25.f); Take away the parties’ right to object to Chambers’ relinquishment of jurisdiction to the Grand Chamber (Protocol No 15, Article 3; Brighton, para 25.d); Shorten the time limit for applications from 6 to 4 months (Protocol No 15, Article 4; Brighton, para 15.a); Extend the scope of the significant disadvantage admissibility provision (Protocol No 15, Article 5; Brighton, para 15.c). Most of these elements point to a new, more restricted role for the Court vis-à-vis national institutions. The boldest statements to that effect are made in Section G, paras 30–33 of the Declaration which states that the governments will revisit the question of reform of the Court in both the near and longer term, noting ‘it may be necessary to evaluate the fundamental role and nature of the Court’ (para 31). Some indication is given that a more restricted role is envisaged: the Court shall enhance its ability to ‘to address serious violations promptly and effectively’ (para 31); ‘Effective implementation of the Convention at national level will permit the Court in the longer term to take on a more focused and targeted role’ (para 32, emphasis added); ‘The Convention system must support States in fulfilling their primary responsibility to implement the Convention at national level’ (32); ‘In response to more effective implementation at the national level, the Court should be in a position to focus its efforts on serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention, and hence would need to remedy fewer violations itself and consequently deliver fewer judgments’ (para 33, emphasis added). This language—which is very clear considering that the document was co-authored by 47 Member States—succinctly lays out a new agenda for the Court. Particularly striking is para 33 as it represents a clear deviation from the reform agenda that marked Protocol No 14 and all other prior reforms. When former president of the Court Luzius Wildhaber made similar suggestions in 2003,22 his ideas were rejected by both activists and politicians. Ten years later, the idea of a more focused role for the Court in combination with an enhanced capacity to address the most serious violations of the ECHR has become the formal policy of the Member States of the CoE. But it was put forward in a spirit very different from Wildhaber’s original suggestion. Institutional-rational reasons were at the heart of his suggestions; now the motivation was downright political. 3. Empirical Analysis There is little doubt that the governments of the CoE meant to send a very clear signal to the Court in 2012. The question is, however, whether and to what extent this has prompted actual change in Strasbourg. As noted above, the new Protocols have yet to enter into force, and a word search of the entire case law of the Court through the Hudoc database reveals that the Court has referred to the Brighton Declaration only twice,23 and four times to Protocol No 15 (including all dissents).24 Protocol 16 has been referred to only once, and that in a dissenting opinion.25 As argued above, it cannot be inferred from the absence of formal references that legal change has not occurred as a result of the Declaration and the political signal it sends. In lieu of references, the Strasbourg bench could have chosen to bow to political demands and simply changed some of its practices, at least in certain areas of law. To explore this and the other related questions discussed above, quantitative changes in the case law and caseload of the Court before and after the Brighton Declaration will now be examined. The period under scrutiny has been limited to 2009–2015. This allows assessment of the 3 years preceding the 2012 Brighton Declaration and the 3 years following that key year. Consequently, all decisions published before 2012 will be considered pre-Brighton in the following analyses—all decisions published after 2012 will be considered post-Brighton. Decisions published in 2012—the year of the Brighton Meeting and Declaration—will be classified as neither before nor after: it is impossible to empirically determine whether those decisions were or were not influenced by the Meeting, by the Declaration, or even by the version of it leaked in February 2012.26 The effect of the broader Brighton moment was, however, most likely already detectable in 2012. General changes in the case law of the ECtHR post-Brighton will be explored first, and this will be followed by a more detailed analysis of the frequency of the Court’s use of the margin of appreciation and subsidiarity before and after the Brighton Declaration. Against this backdrop, the article then tests for variations in the use of margin of appreciation in different legal sub-fields and with regard to different respondent states. A. General Evolution of the Court’s Case Law before and after the Brighton Declaration Although the novel critique included in the Brighton Declaration, and particularly its bold statement on the need for more subsidiarity, makes it stand out from prior reforms, it should not be forgotten that the Declaration also reflected general concerns about the growing caseload of the ECtHR, which was at an all-time high by the time the Brighton Declaration was negotiated. Some Member States were probably more impassioned by the steep rise in the Court’s case load than by the British criticism of judges and judgments and related wish for a new status quo. Part of the new agenda, as explicated in Section G, paras 30–33 of the Declaration, was to create a more focused Court that heard fewer cases and consequently passed fewer judgments. Greater subsidiarity was part of a larger rescue plan for the Court proposed by the British chairmanship, which found allies among Member States eager to find a way of relieving the overburdened Court; among other reasons, it found support due to its clear political stance. Notwithstanding the differences in what motivated the individual Member State governments, the evolution in the caseload is an important general indicator of possible change at the Court post-Brighton. As can be inferred from Figure 1 below, if the Brighton objective was a Court that heard fewer cases and issued fewer judgments, both objectives seem to have been achieved. Figure 1 shows a clear drop in the number of cases pending before a judicial formation, as well as a drop in the number of judgments in the period after Brighton. Figure 1. View largeDownload slide Number of cases pending and judgments. Figure 1. View largeDownload slide Number of cases pending and judgments. Figure 1 could further reveal either the Court’s remarkable productivity in recent years or its ability to reduce the number of cases pending. This is indeed not a result of more judgments but rather the consequence of the dismissal of a very significant number of pending cases; the number of judgments is in fact declining, as depicted. The Court has in practice cleared out the backlog by dismissing an impressive number of pending cases—86,201 in 2012, 89,738 in 2013 and 83,675 in 2014. Moreover, the new stricter admissibility criterion derived from Protocol No 14 (‘significant disadvantage’) is also likely to have resulted in a general reduction of cases allocated to a judicial body (for details, see Appendix 1). What is not revealed through analysis of these quantitative measures is that, after the backlog was eliminated, the remaining cases were in practice the more difficult ones. We estimate that the Court now has a backlog of 14,000 non-repetitive cases and 10,000 priority cases. In addition, many new incoming cases can be categorized as ‘difficult’.27 One preliminary conclusion, therefore, is that the reforms have so far clearly made a dent in the backlog and created a court that hears fewer cases and passes fewer judgments. But it has also created a Court that devotes a significant amount of time to dismissing cases. The tough question at hand is whether, by the sheer number of difficult backlog cases, the Court will in fact remain overburdened and: (i) be unable to process that many cases within a reasonable period of time and (ii) not yet be able enjoy its more focused role. Figure 2 explores these relationships further by measuring the output (number of applications judged + dismissed cases + cases struck off the list) against the number of pending cases per year, which is sometimes referred to as the case throughput of the Court. Figure 2. View largeDownload slide Judgments, case load and case throughput. Figure 2. View largeDownload slide Judgments, case load and case throughput. As can clearly be seen in Figure 2, the throughput of the Court increased after Brighton, meaning that the Court now processes a greater percentage of its pending cases either by judgment, by dismissal, or by striking the case off. However, although the rate went up sharply in 2012 it later dropped off, most notably in 2015. Indeed, throughput now seems to be too low for the Court to effectively carry out the more focussed role envisaged by the Brighton Declaration. If the Court was to both reduce its backlog and engage in a new, more focussed role, throughput should be at least 100 pct. as that would reduce total cases by the same number as enter they system. However, since there is already a pre-existing backlog, throughput would need to be approximately 115 pct. in order to create a balanced system within 5 years, based on the current number of backlog cases. That rate was only achieved in 2014 when the Court was most actively engaged in dismissing ill-founded cases. In fact, the current throughput rate will inevitably lead to an increase in the backlog of cases.28 To conclude this section: the Court has not yet been fully relieved of the burden of its backlog and it has not yet found a balance between incoming cases and output that allows for it to take up its new, more focussed role. Basically, although the accumulated number of pending cases is now significantly smaller, the Court still faces a great number of difficult cases—some 24,000—that will need to be dealt with in the near future. And it is likely that the backlog will start building up once again. B. Evolution in the Use of Margin of Appreciation and Principle of Subsidiarity The standard doctrine of the margin of appreciation has evolved in the jurisprudence of the Court mainly in connection with Articles 1, 13, 19 and 35(1).29 The Court developed it as a tool to deal with the complex institutional interfaces triggered by the Convention: the primary responsibility of the Member States to protect the substantial rights conferred by the Convention (Article 1) and the monitoring role of the court in this regard (Article 19) in combination with the principle of exhaustion of local remedies (Article 35(1)) as a prerequisite for the Convention right to an effective remedy (Article 13). Pre-Brighton, the Convention did not mention the margin of appreciation although it was frequently cited in the case law of the Court and the Commission. In fact, reference was made to ‘une certain marge d’appréciation’ as early as the Cyprus case, the very first case before of the Commission.30 This subsequently evolved into the English language notion of ‘margin of appreciation’. This sub-section explores empirically detectable change in use of either the margin of appreciation or subsidiarity in the case law of the Court following the Brighton Declaration31 by testing for word frequency as well as by employing more complex methods as explained in the individual analyses. The basic objective is to attempt to detect any potential change in the use of the doctrines of margin of appreciation or subsidiarity in the case law. Figure 3 explores the potential increase in use of the margin of appreciation taking three variables into account: the actual number of references made to it in case law, the quantitative development of the case law and the relative development of references to the margin of appreciation as a percentage of total case law. Figure 3. View largeDownload slide Development of case law versus margin of appreciation. Figure 3. View largeDownload slide Development of case law versus margin of appreciation. Although there is an overall decline in the number of judgments throughout the entire period under scrutiny, Figure 3 shows that the actual number of cases where either the margin of appreciation or subsidiarity are cited is roughly stable over time. This suggests that there is a statistically significant increase in the percentage of cases that refer to either the margin of appreciation or subsidiarity over the entire period.32 However, this is a general trend that had already begun before the Brighton Declaration—growth since 2012 is roughly 2.5%, and 5% over the entire period. This finding echoes the results of an earlier investigation by Mowbray, who argued that references to the margin of appreciation increased following the 2010 Interlaken Declaration.33 There is, in other words, a growth in the number of references although it is impossible to say whether this was triggered by the Brighton Declaration or the earlier Interlaken Declaration as the growth pattern is roughly the same over the entire period. A closer look at the case law of the various chambers of the Court shows a difference between the ordinary chambers and the Grand Chamber in this regard. This is depicted in Figure 4 which measures the occurrence of margin of appreciation or subsidiarity cases relative to the total number of cases in both chambers. Figure 4. View largeDownload slide Margin of appreciation cases per chamber as percentage of the total number of court cases. Figure 4. View largeDownload slide Margin of appreciation cases per chamber as percentage of the total number of court cases. The picture that emerges is that the relative increase in references is mainly detectable at the level of ordinary chambers, and not in the case law of the Grand Chamber. Figure 5 breaks down the general tendencies by disaggregating the broader doctrine into four elements: margin of appreciation, principle of subsidiarity, the seemingly more recent doctrine of ‘wide(r) margin of appreciation’, and, finally, the ‘narrow(er) margin of appreciation’—an expression that would typically indicate the development of the increase of margin of appreciation, but in the opposite direction. Figure 5 calculates the occurrences of these terms by measuring the frequency per million of occurrence of the different expressions. Frequency per million is a standard measure used to express the relevant popularity of a word or expression by counting the average number of times it appears per million words in the corpus of text.34 Figure 5. View largeDownload slide The evolution of the different expressions in the Grand Chamber before and after 2012. Figure 5. View largeDownload slide The evolution of the different expressions in the Grand Chamber before and after 2012. Figure 5 shows a general increase in margin of appreciation references over the entire period. Use of ‘wide(r) margin’ increases (see further below), but only by a small amount. Reference to the principle of subsidiarity in fact decreases slightly. Narrow(er) margin of appreciation remains stable over the entire period. The overall development, taking both the ordinary chambers and the Grand Chamber into account, can be further illustrated by introducing a more complex metric. Figure 6 measures the development in popularity of the relevant expressions. Popularity is a simple metric we devised to show how high a certain expression ranks within a given set of texts. In plain terms, it is inversely analogous to what the popularity ranking of an expression is—that is, it measures how frequently a given expression is used in comparison with all other expressions in a text corpus.35 Figure 6. View largeDownload slide Popularity of ‘margin of appreciation’ expressions. Figure 6. View largeDownload slide Popularity of ‘margin of appreciation’ expressions. What is revealed by applying these more complex measures is that the popularity of the expressions ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ increases—whilst subsidiarity is roughly stable over time. The same is true of ‘narrow(er) margin’. However, both ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ climb the most during the period leading up to the Brighton Declaration—and then actually remain stable at the new higher level of popularity. In line with Mowbray’s analysis cited above, there is good reason to see the rise in use of the greater margin of appreciation as part of a broader trend that started at about the time of the 2010 Interlaken Declaration.36 That said, the usage of margin (and wide(r) margin) of appreciation remains high following the Brighton Declaration. In that sense, by the time the Court received the political message, the new developments were already underway. C. Variations in the Use of Subsidiarity by Legal Field and Member State As explained above, the margin of appreciation is constructed in the doctrine by reference to the more institutional and procedural components of the European human rights regime. For this analysis, it is, however, essential to determine where the doctrine is most frequently used in the various subsections of European human rights law, and whether any differences in usage are detectable after the Brighton Declaration. The Articles of the Convention that have historically triggered the most criticism are of particular interest in this regard, notably Article 8 which provides the right to respect for private and family life, and which has in some cases prevented authorities from expulsing criminals who face danger in the country of destination or who would then be at risk of having their right to family life put in jeopardy. This sub-section starts out by determining which Articles are most frequently cited in conjunction with the margin of appreciation and then explores whether there are differences in use of the doctrine with regard to the various Member States. It has been suggested in the literature that certain countries receive ‘special treatment’ in Strasbourg37 especially the UK. Perhaps in reaction to its robust criticism, the Court may have been allowing the UK more margin of appreciation in recent years.38 Possible variation among the various Member States is investigated in the second part of the analysis. Figure 7 analyses the evolution in usage of either the margin of appreciation or subsidiarity in the context of specific articles of the ECHR that confer substantial rights which are frequently the subject of litigation (Articles 3, 6, 8, 10, 13 and 14) and two more procedural/institutional measures (Articles 34 and 35). The individual articles are identified based on analysis of Case Details provided by the Court in Hudoc. The percentages are calculated as the percentage of cases concerning a specific article against the totality of margin of appreciation or subsidiarity cases. Figure 7. View largeDownload slide Article percentages before and after 2012. Figure 7. View largeDownload slide Article percentages before and after 2012. The results are striking in two ways. First, except for Articles 3 and 8, no statistically significant evolution could be noted with regard to specific substantive rights before and after the Brighton Declaration. Article 35 on the exhaustion of local remedies is now, post-Brighton, the most frequently cited Article, with an increase of roughly 20% vis-à-vis the total case law regarding either the margin of appreciation or subsidiarity. This suggests that the usage of either margin of appreciation or subsidiarity has increased with regard to the controversial substantive rights contained in Articles 3 and 8. But even more striking is the realization that procedural aspects of European human rights law have become a key avenue for deciding on margin/subsidiarity. This ‘proceduralisation’ is a development that one sitting ECtHR judge has suggested is the way forward for the Strasbourg Court.39 Figure 8 explores this development further by visualizing the development of specific articles over time with regard to the margin of appreciation and subsidiarity. To test for this alleged proceduralization of European human rights law,40 the Articles included are those typically associated with the doctrine of the margin of appreciation and subsidiarity (Articles 13, 19 and 41). In addition, the Figure depicts the development of certain substantive rights central to the Court’s jurisprudence (Articles 6 and 8). Figure 8. View largeDownload slide Margin of appreciation cases per article. Figure 8. View largeDownload slide Margin of appreciation cases per article. Two post-Brighton developments are noteworthy. First, the gradual increase in use of the margin of appreciation in Article 8 cases (respect for private and family life) and a more pronounced growth in the use of the margin of appreciation in Article 35 cases (admissibility criteria). Article 3 fluctuates quite a bit over the period but shows a net increase, as also suggested by Figure 7. The other most frequently used articles in connection with margin of appreciation basically remain stable over the entire period: Articles 6 (fair trial), 13 (effective remedy) and 41(just satisfaction), as well as—although barely measurable—Article 19 (establishment of the Court). In addition, although Article 41 (just satisfaction) is, in the long run, the most frequently cited Article, by 2015, its trajectory aligns with Article 35 and it ultimately shows a slight decline over the entire period. Although the changes with regard to Article 35 are statistically significant, it is equally important to observe the increase, since 2012, in usage of the margin of appreciation in conjunction with Article 8, as this area of law is among the most controversial in many Member States, including the UK. The same goes for Article 3. There is no space here to go into the actual legal consequences of this increased frequency of references. But what is certain, at least at the statistical level of analysis, is that the greatest changes occurring around the time of the Brighton Declaration concerned Articles 3, 8 and 35. Figure 9 disaggregates the doctrine of the margin of appreciation into ‘margin of appreciation’, ‘principle of subsidiarity’, ‘subsidiarity principle’ and ‘wide(r) margin of appreciation’ with regard to Articles 6, 8 and 35. Article 6 is included as a point of comparison. The methodology used in Figure 9 is the same as in Figure 5 above, and measures the frequency per million of occurrence of the different expressions. The boxes in the plot below show the average frequency per million for each expression. Figure 9. View largeDownload slide Expressions per article. Figure 9. View largeDownload slide Expressions per article. In the case of Articles 8 and 35, there is growth in the use of ‘margin of appreciation’ and ‘wide(r) margin of appreciation’. References to ‘subsidiarity’ remain roughly stable. Article 3 develops somewhat differently—margin decreases after 2012, whilst subsidiarity increases. Comparatively, with regard to Article 6, there is a decline across all categories. It thus emerges that the main differences following the Brighton Declaration with regard to the doctrines of margin of appreciation and subsidiarity are indeed to be found with regard to the Articles 3, 8 and 35. This leads to the related question of whether this is mainly the result of cases originating from certain specific countries—or whether there is a general trend. Figure 10 visualizes the distribution of margin and subsidiarity cases per respondent state. Figure 10a lists the top-5 countries in terms of number of margin cases compared to the total number of margin of appreciation cases before and after 2012. Figure 10b repeats the same analysis by including all countries with more than 4 pct. of all margin cases. Figure 10. View largeDownload slide (a) Margin of appreciation per country. (b) Division of margin of appreciation cases per country. Figure 10. View largeDownload slide (a) Margin of appreciation per country. (b) Division of margin of appreciation cases per country. Figures 10a and b somewhat unsurprisingly show that the most frequent respondent states overall—such as Poland, Russia and Turkey—also come out ahead with regard to margin of appreciation/subsidiarity cases. Interestingly, the UK, which accounts for a much smaller percentage of the total number of cases, makes it into the top-5—but only in the period before 2012. After Brighton, the UK is below 4 pct. and thus below the threshold applied here. Figure 11a and b visualize the percentage of cases involving either the margin of appreciation or subsidiarity with regard to total cases judged per respondent state, both before the Brighton Declaration (11a) and after (11b). The respondent states are also ranked according to percentage of cases involving margin or subsidiarity compared to the total number of cases involving that state that went to judgment. The figures only include respondent states that account for more than 1 pct. of the total number of judgments for each period. Figure 11. View largeDownload slide (a) Percentage of margin cases before 2012. (b) Percentage of margin cases after 2012. Figure 11. View largeDownload slide (a) Percentage of margin cases before 2012. (b) Percentage of margin cases after 2012. Appendix 1. View largeDownload slide Applications allocated to judicial formation. Appendix 1. View largeDownload slide Applications allocated to judicial formation. The two figures reveal a significant disparity between the respondent states with regard to how often either the margin of appreciation or subsidiarity is evoked in judgments. Before the Brighton Declaration, three founding Western European Member States, Austria, Finland and the UK, topped the list with more than 40 pct. of their cases involving either margin or subsidiarity. In fourth place, we find Croatia with more than 35 pct. Hungary (fifth) and Germany (sixth) are both around 20 pct. After the Brighton Declaration, the list is topped by Lithuania with more than 40 pct., followed by Latvia, Austria and the UK, all with more than 35 pct. Germany has increased to 30 pct., while Croatia is down to seventh place with 27 pct. What Figures 11a and 11b make very clear is that the doctrines of margin of appreciation and subsidiarity are cited significantly more frequently in judgments that involve certain countries. To put it differently, Europe seems to be somewhat out of balance in this regard. The countries known for having the most cases brought before the ECtHR do not feature at the top of this scale. During the period studied, Russia had the most margin or subsidiarity cases overall (111), followed by Poland (90) and Turkey (71). However, three other countries stand out, namely Croatia (53), UK (49) and Hungary (49), all with a relatively high number of margin or subsidiarity cases overall, but also a very high percentage of such cases compared to their total number of cases (judgments) during the period. In other words, those countries are, relatively speaking, the ones most frequently involved in litigation on margin or subsidiarity questions. Austria also features prominently in the ranking, although this is based on a total of only 42 cases. This raises the question of whether Member States can gain legal advantage by frequently evoking either margin or subsidiarity before the Court and, notably, whether there are any discernible differences among Member States in this regard. To test for potential differences in outcome between newer versus older Member States, between East versus West, and between vocal critics of the system versus quieter Member States, Table 1 analyses the outcomes of cases involving the UK, Austria, Hungary and Croatia during the period studied. The rationale for selecting this small sample are as follows: During the period studied, all four countries were involved in comparable numbers of margin or subsidiarity cases and had a comparably high frequency of margin cases compared to the number of all judgments involving them. In a very simple statistical analysis, Table 1 considers margin or subsidiarity to be awarded if the Court finds no violations in a case where a margin or subsidiarity claim has been made. This is, of course, not an entirely precise way of measuring legal output, but cross-checking the statistical results with a reading of a sampling of the judgments suggests that it is sufficiently precise for purposes of this analysis. Table 1. Oucome of Magin Cases Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Table 1. Oucome of Magin Cases Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  In Table 1, we measure the ratio of margin of appreciation or subsidiarity by counting the total and cumulative number of Articles (‘Total Articles’) on which cases have been litigated where margin or subsidiarity was invoked by the four respondent states, as well as the cumulative number of non-violations of Articles in these cases.41 The findings are rather striking. The UK is the most successful respondent state with a ratio of success of 59 pct. in cases involving margin or subsidiarity. Austria follows closely with 55 pct. However, the success rates of Hungary and Croatia are considerable lower, with both at 25 pct. In other words, the two Western and original Member States are more than twice as successful when invoking margin or subsidiarity than the two new, Eastern European Member States. This raises the question of whether more, highly critical discourse in the respondent states produces a wider margin or subsidiarity—something suggested in qualitative studies of the Court.42 A recent study notes that the UK’s relationship with Strasbourg is characterized by its ‘strong criticism’, Hungary’s by its ‘moderate criticism’ (although it has become increasingly critical in recent years), while Austria’s relationship is characterized by its ‘sparse criticism’.43 Croatia is not included in that analysis, but would probably fall under the category of ‘sparse criticism’. The statistical analysis as conducted does not reveal a pattern that could indicate that the more strident the criticism, the greater the margin or subsidiarity. Rather, the differences we observe are between old and new, West and East. One plausible explanation for this pattern is that the ECtHR’s purportedly new, more procedural approach favours Member States that can be assumed to have strong legal and political systems. In other words, the new Member States—all from the East—which over the past two and a half decades have been reorganizing their legal systems, might have a harder time succeeding in the new, more procedural framework of assessment. An alternative explanation would be that Western European lawyers have been better at integrating the alleged new approaches in Strasbourg into their litigation strategies. A third explanation would be that the ECtHR is generally less likely to find violations against so-called high-reputation states such as the UK.44 All three explanations are, however, prone to selection bias. Not all countries have similar cases brought against them, and therefore, the general likelihood of the ECtHR finding a violation might be conditioned by this rather than by other factors. 4. DISCUSSION AND CONCLUSION The overarching research question dealt with in this article is whether the Brighton Declaration has produced anything like a New Deal on European human rights. As argued in the opening section, this envisaged New Deal would primarily shift responsibility for human rights towards the law and politics of the Member States. In short, greater subsidiarity would apply. And, because of this greater subsidiarity, the Court would be able to take up a novel and more focused role. The findings provide several answers to the research question. First, the Court’s case law from the period before and the period after the Brighton Declaration was analysed in order to ascertain whether the Court was moving towards achieving the Declaration’s objective, indeed whether fewer cases were being heard, enabling the Court to work in a more focused manner. Although the backlog of cases has largely been cleared away since 2012, analysis of the throughput, especially of the last few years, puts into question whether the ECtHR is yet in a position to execute its new, more focused role. Analysis of the data leads to the conclusion that, even after recent reforms, the current proportion of input to output of cases has not yet triggered that evolution in the Court’s role. Second, the evolution in use of the margin of appreciation and subsidiarity was analysed. We found that there has been a steady increase in references made to either margin or subsidiarity, although this trend dates to the Interlaken Declaration and has kept to the same growth pattern ever since. We further observed that most of the increased references could be attributed to the ordinary chambers, whilst the number of references made in the Grand Chamber remained more stable. However as depicted in Figure 6 above, by disaggregating the different usages of the terms margin and subsidiarity, we were able to detect a significant increase in use of the expressions ‘margin of appreciation’ and ‘wide(r) margin of appreciation’. Although use of both was on the increase prior to Brighton, usage has remained continuously high since. This suggests that the message conveyed in Brighton was not lost on Strasbourg. In the final analytical section, variation in the use of margin or subsidiarity in different legal fields and among Member States was tested. First, we identified which Articles in the Convention are most often invoked in cases involving margin or subsidiarity, which led to two striking observations. The substantive rights Articles 3 and 8 both saw significant growth after the Brighton Declaration whilst the other Articles remained stable. The most significant increase in usage was however in cases that involve Article 35 which, post Brighton, has increased by approximately 20 pct. We then explored the evolution of these articles over time. Again, we noted that the most striking developments concerned Articles 8 and 35. We then disaggregated the data into the different expressions of margin and subsidiarity. In cases involving both Articles 8 and 35 there was an increased use of ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ after the Brighton Declaration. References to ‘subsidiarity’ and ‘narrow(er) margin’ remained stable over time. We then tested for variation in the use of margin and subsidiarity among the various Member States. Although the countries with the most cases overall top the list, when we measured the relative frequency of how often either the margin of appreciation or subsidiarity are evoked by a specific state, we observed very significant variation among the Member States. Before the Brighton Declaration, margin or subsidiarity claims were most frequently made by Austria, Finland and the UK—more than 40 pct. of all their cases involved margin or subsidiary—followed by Croatia and Hungary. Post-Brighton, the most frequent user was Lithuania with more than 40 pct., followed by Latvia, Austria and the UK, all with more than 35 pct. We then tested for differences in the success rates of a sample of four countries, all very frequent users of the doctrine, when they claimed margin of appreciation or subsidiarity. Strikingly, Austria and the UK, two of the founding, Western Member States, were more than twice as successful as the new, Eastern Member States of Hungary and Croatia. We could conclude that countries strongly critical of the ECtHR are not necessarily more successful when they stand before it. Geography seems to be the greatest contributing factor—Western states clearly come out ahead in our sample. We could conclude, tentatively, that the supposedly new approach of giving more weight to procedural aspects of national human rights protection tends to create a bias that favours Western states, which are assumed to offer more solid legal guarantees. Alternative explanations were however also presented. When read together, the statistical analyses conducted in this article suggest that the ECtHR does provide more subsidiarity overall following the Brighton Declaration. It does so by its greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly at the level of ordinary chambers. The increase is not a general phenomenon but instead mainly concerns cases that involve three specific areas of law: Article 8 on the right to privacy, Article 35 on access to the Court, and, to a lesser degree, Article 3 on the prohibition of torture and inhuman and degrading treatment. Moreover, the increase in usage we detected began well before the Brighton Declaration, and was possibly triggered by the Interlaken Declaration of 2010. Nevertheless, in all cases usage of the doctrine either continued at a high level or increased even further following the Brighton Declaration. All of this has theoretical implications. This article clearly suggests that an international institution like the ECtHR is receptive to external input of a non-legal or semi-legal nature. The Brighton Declaration is, however, difficult to place: while it is currently undoubtedly a soft law instrument, the event itself—the Brighton meeting and resulting declaration—might well be viewed as a shock to the system in light of the highly political context in which it took place. The most interesting take-away from this analysis is not whether it was the declaratory document that triggered change, or rather the political power-play surrounding it. The key finding in this regard is that the ECtHR cannot be seen to operate in splendid isolation from politics. The Court is, in other words, receptive to political signals—either in the form of declaratory documents or critical discourse. It is important to understand this when speculating on the further evolution of the Court and its ability to adapt to the changing frameworks of power and politics in Europe. In this regard, it is particularly striking that we see the greatest change regarding Article 8 cases. That is an area of law that has prompted significant criticism of Strasbourg jurisprudence in recent years, especially in the UK. Our analysis contributes to the legal literature on subsidiarity by providing the first-ever systematic analysis documenting the evolution of the usage of margin and subsidiarity by the ECtHR, which generally confirms the work of legal scholars who have suggested, based on qualitative studies of individual cases, that usage of the doctrine has increased in recent years. This study fully supports those analyses of the doctrine, but it also documents its highly uneven development—regarding both the various areas of substantive law and the various Member States. Some Member States invoke the doctrine far more frequently than others, and Western states seem to profit most from frequent litigation. This is especially true of the UK that has the highest detected win rate in cases involving the doctrine. This links directly to Judge Spano’s remarks on the alleged ‘proceduralisation’ of the doctrine, the final theory considered in the analysis, in which we detect an increase in the use of Article 35 in connection with the doctrine, which could be indicative of such a change.45 The statistical analysis is, however, not conclusive in this regard. Yet, the strikingly higher win rate of Western Member States in cases involving the doctrine might, as suggested, be indicative of a similar transformation in the reasoning of the ECtHR. It is noteworthy that Member States with well-established legal and political systems come out ahead in this regard. This could indicate that the Court is more inclined to be deferential to those systems than to the more recently established democratic systems of Eastern Europe. In conclusion: Has the Brighton Declaration indeed changed European human rights? The Court has not turned into a more focused institution—it remains burdened by a heavy caseload. The most recent statistics confirms this finding by noting the imbalance between input and output at the Court. According to the Court’s own, most recently published statistics, 53,500 applications were allocated to a judicial formation in 2016, an overall increase of 32% compared with 2015.46 Yet, the Court has in some respects met the objectives of the Brighton Declaration. The increase in subsidiarity is significant and strongly suggests an overall change in this regard. Moreover, the greater deference given to Member States that can formally document the seriousness of their legal and political systems in fulfilling the obligations of the Convention also suggests that real change has occurred. The New Deal on European human rights is being implemented—but it is an on-going process rather than an accomplished transformation. The statistical analysis has been facilitated by Ioannis Panagis, a computer scientists and data specialist at iCourts. This research is funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of iCourts. A special thanks to the anonymous reviewers and Başak Çalı and Shai Dothan for feedback on this article. This research is funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of iCourts. Footnotes 1 Brighton Declaration, adopted at the High-Level Conference on the Future of the European Court of Human Rights, 19 April 2012. Available at <http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf> accessed 15 August 2017. 2 For an analysis of the evolution of cases before the Court, see appendix 1 in Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law & Contemporary Problems, 141-78. 3 Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court Of Human Rights And Its Discontents: Turning Criticism into Strength (Edward Elgar 2013) 32–35 4 Hirst v the United Kingdom (No 2) App no 74025/01 (ECtHR 2005). 5 Some of the most controversial ideas originally put forward by the British chairmanship, such as a suggested new provision on ‘duly examined’ cases which would have significantly limited the right to individual petition, never made it into the final Declaration. See Antonio Bultrini, ‘The Future of the European Convention on Human Rights after the Brighton Conference’ (2012) 12 IAI Working Papers 1. 6 Madsen (n 2) 169 <http://www.iai.it/sites/default/files/iaiwp1223.pdf> accessed 8 September 2017. 7 Laurence Helfer, ‘The Burdens and Benefits of Brighton’ (2012) 1 ESIL Reflections 1. Jonas Christoffersen and Mikael R. Madsen, ‘Postscript: Understanding the Past, Present and Future of the European Court of Human Rights’ in Jonas Christoffersen and Mikael R. Madsen (eds), The European Court of Human Rights between Law and Politics (2nd edn, OUP 2013). 8 Subsidiarity was already a key issue at the 2010 Interlaken Conference, but the context was significantly different. As explained by Alastair Mowbray, this was a conference held at the initiative of the Court and in a collaborative spirit seeking to find solutions to the growing caseload of the Court. Alastair Mowbray, ‘Subsidiarity and the European Convention on Human Rights’ (2015) Human Rights Law Review 15. 9 For a discussion of the complex relationship between authority and power, see Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen, ‘How Context Shapes the Authority of International Courts’ (2016) 79 Law & Contemporary Problems 1. 10 Jon Petter Rui, ‘The Interlaken, Izmir and Brighton Declarations: Towards a Paradigm Shift in the Strasbourg Court’s Interpretation of the European Convention of Human Rights’ (2013) 31 Nordic Journal of Human Rights 28. 11 Data set contains all case law of the ECtHR since its inception and will be made available at icourts.dk. The HUDOC search engine of the ECtHR has also been used for cross-checking purposes. See <http://www.echr.coe.int/Pages/home.aspx?p=home&c=> accessed 15 August 2017. 12 For a general discussion of soft law, see Jan Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167. Gregory Shaffer and Mark A Pollack, ‘Hard Vs. Soft Law: Alternatives, Complements and Antagonists in International Governance’ (2010) 94 Minnesota Law Review 706. 13 There is a large literature on critical junctures in the tradition of historical institutionalism. Theorizing exogenous shocks has played an important role in economic theory. For a general description of these approaches, please see Kathleen Thelen, ‘Historical Institutionalism in Comparative Politics’ (1999) 2 Annual Review of Political Science 369 and Dani Rodrik, Arvind Subramanian and Francesco Trebbi, ‘Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development’ (2004) 9 Journal of Economic Growth 131. 14 For example Madsen (n 2). 15 Urška Šadl and Mikael Rask Madsen, ‘Did the Financial Crisis Change European Citizenship Law? An Analysis of Citizenship Rights Adjudication Before and After the Financial Crisis’ (2016) 22 European Law Journal 40. 16 Robert Spano, ‘Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487. See also the analysis in Dean Spielmann, ‘Whither the Margin of Appreciation?’ (2014) 67 Current Legal Problems 49. 17 Oddný Mjöll Arnardóttir, Rethinking the Two Margins of Appreciation (2014). See also Rui (n 1); Basak Cali, ‘Coping with Crisis: Towards a Variable Geometry in the Jurisprudence the European Court of Human Rights?’ (forthcoming 2018) Wisconsin Journal of International Law. 18 The most in-depth treatment of the question prior to this article is found in Alastair Mowbray’ work on subsidiarity which assesses changes in the Court’s treatment of subsidiarity during three eras: the old Court, the new Court (1999–2009) and the post-Interlaken Court (2010–). Mowbray’s analysis is discussed in the empirical analysis below. Mowbray (n 8). 19 On the role of the larger Member States in this regard, see Mikael Rask Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004). 20 See Madsen (n 2). See also Flogaitis, Zwart and Fraser (n 3). 21 C. Colm O'Cinneide, ‘The European Court of Human Rights between Law and Politics edited by Jonas Christoffersen and Mikael Rask Madsen . Oxford: PB - OUP , 2011. 236 pp.’ (2012) 18 European Law Journal 731. 22 L. Luzius Wildhaber, ‘A Constitutional Future for the European Court of Human Rights’ (2002) 23 Human Rights Law Journal 161. 23 The cases found are: Case of Fabris v France Appl no 16574/08 (ECHR, 7 February 2013), and Case of Lillo-Stenberg and Sæther v Norway Appl no 13258/09 (ECHR, 16 January 2014). Checked on 1 December 2016. 24 The cases found are: Case of Parrillo v Italy Appl no 46470/11 (ECHR, 27 August 2015); Case of A and B v Norway Appl no 24130/11 and 29758/11 (ECHR, 15 November 2016); Oliari and others v Italy Appl no 18766/11 and 36030/11 (ECHR, 21 July 2015); and Erla Hlynsdottir v Iceland (No 3) Appl no 54145/10 (ECHR, 2 June 2015). Checked on 1 December 2016. 25 Jeunesse v Netherlands Appl no 12738/10 (ECHR 10 March2014). Checked on December 1, 2016. 26 See for instance, Le Monde (27 February 2012) <http://libertes.blog.lemonde.fr/2012/02/27/menaces-sur-la-cour-europeenne-des-droits-de-lhomme/> accessed 13 December 2016. 27 Jonas Christoffersen and Mikael Rask Madsen, ‘Menneskerettighedsdomstolens fremtid: Midtvejsstatus efter Brighton-erklæringen’ (2016) 1 Ugeskrift for Retsvæsen 4. 28 This is in fact already occurring. See <http://www.echr.coe.int/Documents/Stats_pending_2017_BIL.pdf> accessed 30 May 2017. 29 Mowbray (n 8) 27. This is arguably the more procedural version of margin of appreciation. With regard to some specific rights—for example, arts 10 and 15—the doctrine has developed particular elements. 30 For a discussion, see Spielmann (n 16) 51. 31 In the empirical analyses presented both margin of appreciation and subsidiarity are included when testing for developments in the use of the doctrine. 32 To be sure, a reference does of course not imply that there necessarily is found a violation in the case. 33 Mowbray (n 8). These changes might also be due to the kind of cases brought before the court, that is, it might have faced more cases in areas which often involve subsidiarity. 34 The underlying mathematical metric is explained here: <https://www.sketchengine.co.uk/documentation/simple-maths/#example> accessed 17 January 2017. 35 The popularity analysis is inspired by Zipf’s law, an empirical law stating that the probability of a word having the Rth rank is roughly 1/r, ie it does not depend on the frequency of the term but rather on the rank itself. As a consequence, the observed popularity rankings are independent of the total size and the total number of underlying texts. Therefore, the ranking of an expression in different court years, and hence its popularity, is comparable even when the number of decisions per year is different. A technical note: the results presented in the Figure were smoothed out by applying a logarithm. 36 Mowbray (n 8). 37 For example, Cali (n 17). Shai Dothan has attempted to theorize this phenomenon in a reputational model, claiming that high-reputation states pose a larger threat to the court’s reputation and therefore receive more lenient treatment. See Shai Dothan, Reputation and Judicial Tactics: A Theory of National and International Courts (CUP 2014). 38 For additional references, see Madsen (n 2) 171. 39 Spano (n 16). See also the discussion in the introduction of this article. 40 Proceduralization is understood as defined in ibid. Other authors use it differently. See, for example, Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases (CUP 2017). 41 For the number of total Articles, we included arts 1–18, and Protocol No 1, arts 1–4. We have, therefore, excluded arguments that touch on procedural matters—for instance, art 35, which cannot be violated. 42 Cali (n 17). 43 Patricia Popelier, Sarah Lambrecht and Koon Lemmens (eds), Criticism of the European Court of Human Rights – Shifting the Convention System: Counter-dynamics at the National Level (Intersentia 2016). 44 See Dothan (n 37). 45 For further analysis one could explore the role of the notion of significant disadvantage of art 35 in this regard. 46 European Court of Human Rights, Analysis of Statistics 2016 (Report of January 2017, Strasbourg). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of International Dispute Settlement Oxford University Press

Rebalancing European Human Rights: Has the Brighton Declaration Engendered a New Deal on Human Rights in Europe?

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Abstract

ABSTRACT Has the Brighton Declaration produced a New Deal on European human rights by assigning a new and more central role to national legal and political institutions and by demanding greater subsidiarity? Against the backdrop of a systematic exploration of the case law of the European Court of Human Rights (ECtHR), this article concludes that, after the Brighton Declaration, the ECtHR is indeed providing more subsidiarity. The Court now makes greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly regarding two areas of law: Article 8 on the right to privacy and Article 35 on access to the Court. However, as the article further demonstrates, this increase in subsidiarity is not conferred on all Member States equally. The old, Western Member States are generally the greatest beneficiaries of the ECtHR’s new jurisprudential directions. But the analysis also demonstrates that, contrary to popular belief, the most vocal critics of the system are not given preferential treatment. A final, more general conclusion that follows from these findings is that the ECtHR is receptive to political signals and does not, as is often claimed, operate in a political vacuum. Although currently merely soft law documents, the Brighton Declaration and its associated Protocols, by precipitating change at the Court, have achieved exactly what they set out to do. This has theoretical implications for the understanding of the evolution of international courts. 1. Introduction In April 2012, the governments of the 47 Member States of the Council of Europe (CoE) adopted the Brighton Declaration, which provides a roadmap for reform, in the short term, of the European human rights regime.1 One important circumstance that may have prompted the reform was the very high number of cases pending before the court—some 150,000 in 20122; another was the growing discontent in certain Member States with the European Court of Human Rights (ECtHR/Court), with its rulings, and even with its judges.3 Although discontent was particularly widespread in the UK stemming from the political pushback against Hirst v the United Kingdom (2),4 the British initiative eventually found support among the other Member States, albeit in the toned down version that made it into the resulting Declaration.5 Even this outcome was surprising for many in the broader human rights community, especially since the Declaration was not limited to institutional matters—it also directly criticized the quality of both judgments and judges of the ECtHR.6 This was clearly unprecedented, and set the tone for a more profound reshaping of human rights in Europe. The Brighton Declaration most of all seeks to induce change in the balance between European and national institutions in the protection of human rights. Although the Declaration at times seems to look in several directions at once,7 its main message is that national institutions, ranging from courts and human rights institutes to parliaments, should play a more substantial role in interpreting and developing the European Convention of Human Rights (ECHR/Convention).8 Now, 4 years on, two additional Protocols (Protocols 15 and 16) and a follow-up Declaration, the Brussels Declaration (2015) focusing on the implementation of judgments by the ECtHR, have been adopted. In addition, much time has been spent in various academic and professional settings and outlets discussing the future of the Court in both the short and the long term. The lingering question is however whether all this activity has actually brought about the intended consequences: has the balance within the European human rights space shifted in favour of national institutions? This article takes up the issue by asking the broader question of whether the ‘rebalancing’ in favour of national institutions brought about by the Brighton Declaration has resulted in a ‘New Deal’ on human rights in Europe. Posing the question in such politically loaded terms emphasizes that the intended outcomes of the Brighton Protocol are far more pervasive than any of the many more technical adjustments made to the Court in previous reforms and protocols. In other words, the intended outcome of the Brighton Declaration is a structural change within the European human rights space, perhaps even a fresh start. The Court is to play a central, albeit more detached role. That role is also seemingly more restricted: fewer cases will be heard—access to the Court will be limited by procedural means (Protocol 15 and Brighton Declaration); the Court will allow the Member States a wider margin of appreciation as reflected by the addition of the principle of subsidiarity to the preamble of the Convention (Protocol 15 and Brighton Declaration), a cornerstone of the revamped regime; the Court will provide guidance to national institutions through an advisory mechanism, making them better able to adjudicate cases without resorting to the ECtHR as a last instance adjudicator (Protocol 16 and Brighton Declaration). Although other additional points are made in the Brighton Declaration, its vision of European human rights is, in a nutshell, that although the ECtHR shall maintain its authority, it will do so while exercising less power;9 that is, it shall remain the final arbiter of European human rights, especially where serious or widespread violations and principled issues of interpretation are concerned, but it is to be assumed that an increasing number of cases will be finally and conclusively settled by the newly empowered national institutions. Moreover, the Court’s exercise of oversight might be limited to what one critic of the Brighton Declaration has aptly termed an ‘outer procedural control’ as opposed to ‘inner material’ oversight.10 As opposed to the new access criterion of ‘significant disadvantage’, which was introduced prior to the Brighton Declaration in Protocol No 14 (2004—in force 2010), and which allows for quicker dismissal of unmeritorious cases, none of the changes introduced by the Brighton Declaration in the Protocol Nos 15 and 16 have yet entered into force. Considering how difficult it was to convince the Member States to ratify Protocol 14—Russia delayed ratification for 6 years—it is possible that the new Protocols might remain paper tigers for quite some time. Nevertheless, and this is our central hypothesis, the Brighton Declaration might nonetheless have triggered change. Although European human rights may not have changed, legally speaking, discourse on them undoubtedly has, and this may already have induced legal change at the Court. This article investigates whether this is indeed the case, or alternatively, whether the current ECHR regime has perhaps managed to withstand the robust criticism and calls for change expressed in the Brighton Declaration. To test for such potential changes to the European protection of human rights, this article explores a set of empirically detectable effects in the entire data set of the case law of the Court as a means of comparing its case law before and after the Brighton Declaration.11 More specifically, the article analyses structural and quantitative changes in the case law of the Court, including the degree to which it may have widened the margin of appreciation in favour of national institutions, and whether there is any perceptible variation within subfields of the law and between states in this regard. Posing the question of the effect of the Brighton Declaration in these terms speaks to at least three strands of literature. The first is the large body of international law scholarship on the legal standing and impact of soft law.12 Although the Brighton Declaration has been legalized in two additional Protocols (Protocols Nos 15 and 16), it remains strictly speaking a declaratory document at this stage. Yet it very clearly conveys the position held by the governments of the Member States, at least in 2012, and might therefore have triggered changes at the Court in the direction articulated in the Declaration. Our investigation into the possible effects of this declaratory document, therefore, provides an empirical assessment of the effect of soft law. The basic question is whether such political signals cause legal practices to change at a well-established international court. The second relevant body of literature concerns the potential impact of ‘exogenous shocks’ and ‘critical junctures’ on international organizations and courts. The Brighton Declaration was, in many observers’ view, much more than yet another soft law declaration; it was an exceptionally frank political statement on behalf of the Member States directed towards the Court that demanded a new balance in European human rights protection: a new dawn in which the Court would play a different and more limited role. This might well be expressed in terms of theories of external shock or critical juncture since the criticism articulated both before, during and after the Brighton meeting was met with a great deal of astonishment in Strasbourg, as well as in the broader human rights community.13 This analysis is, however, not centred on developing a theory of exogenous shocks and critical junctures. It is instead a continuation of scholarship that has looked into how international courts only possess relative autonomy vis-à-vis their operational environments. Scholars have, for example, demonstrated how geopolitical transformations have had an impact on and changed the practices of the ECtHR14 over time, or how the more specific event of the financial crisis of 2007/08 influenced the jurisprudence of the Court of Justice of the European Union (CJEU).15 This scholarship generally argues that international courts operate within global frameworks of power and ideas that tend to structure their actions. Consequently, international judicial actions do not take place in a vacuum but are reflective of broader sociopolitical transformations. This article contributes directly to that scholarship by seeking to identify the potential effects of the 2012 Brighton Declaration on the subsequent practices of the ECtHR. This article contributes to yet a third strand of scholarship on the development of the related notions of subsidiarity and margin of appreciation at the ECtHR. Scholars, as well as some ECtHR judges, have suggested that the ECtHR is now showing greater deference to national law and politics following the Brighton Declaration. One Strasbourg judge, painting with broad strokes in analysis of what he terms the ‘Age of Subsidiarity’, has suggested that a more procedural approach is gaining a foothold at the Court in response to the Brighton Declaration.16 Accordingly, the Court is allowing Member State institutions—both political and legal—a wide(r) margin if they follow procedures that ensure due assessment in line with the relevant ECtHR case law. Legal scholars have paid particular attention to a series of judgments issued in the aftermath of the Brighton Declaration that seem to indicate a widening of the margin of appreciation.17 Although scholars appear to be leaving all-encompassing generalizations to the judges, there seems to be agreement that, at least in certain cases, the Court is now allowing Member States a greater margin following the Brighton Declaration. The current article’s contribution to this scholarship provides the first systematic empirical exploration of the relevant case law before and after Brighton regarding subsidiarity and the margin of appreciation in view of the new priorities and policies articulated in the Brighton Declaration.18 The structure of this article reflects the outlined analytical approach. It starts out with an overview of the Brighton Declaration—its political background and context as well as its main contents—in order to identify the causal factors that could encourage potential change at the Court. The article then presents an empirical analysis of the Court’s evolution before and after Brighton in three analytical dimensions: The Court’s caseload, the degree to which the margin of appreciation doctrine has changed, and whether there is variation in its application within subfields of law and between Member States in this regard. The article concludes with a discussion of the empirical analysis in relation to the existing scholarship introduced above. 2. The Brighton Declaration At a Glance The ECtHR has been criticized at various moments in its history, notably by governments in response to adverse judgments. Although the Member States have put heat on the Court on previous occasions,19 the discourse both immediately before and after the Brighton Convention was unprecedented. Criticism was not only levelled by politicians weary of occasionally being overruled in Strasbourg, but also by senior members of the bar of the various Member States.20 And nowhere was the tone shriller than in the UK. According to one scholar, Colm O’Cinneide: The manner in which the UK’s presidency of the Council of Europe coincided with a domestic political backlash against the Court has altered the internal dynamics of the Interlaken reform process: the legitimacy of the Court’s role has been called into question to an unprecedented degree, and new tensions have emerged in the relationship between national authorities and the Court.21 The Brighton Declaration was thus not only aimed at the usual legal-technical issues, but also questioned the political role of the Court. More specifically, the Brighton Declaration was not limited to re-legitimizing the court by making it more effective; it targeted the substance of the judgements, the quality of its judges, and, not least, the power of the Court vis-à-vis national institutions. Whereas the Interlaken Conference Declaration (2010) introduced subsidiarity as a tool for limiting the case-(over)load of the Court, the Brighton Conference spoke not only of more subsidiarity but also of more robust subsidiarity: it was a showdown with the ways the Court had accumulated power, and an attempt to renationalize some of that power over human rights. This is explicitly stated in a number of places in the Declaration. The quality of the Court’s judges is singled out when it is noted that the ‘authority and credibility of the Court depend in large part on the quality of its judges and the judgments they deliver’ (para 21). The Declaration welcomes the new Guidelines on the selection of candidates and encourages the States Parties to implement them (para 25.a), and invites the Parliamentary Assembly and the Committee of Ministers to take initiatives with regard to improving the procedures for electing judges (para 25.b). Similarly, the Brighton Declaration addresses the quality of the Court’s judgments (para 23), calling for legal certainty through ‘clear and consistent’ judgments. The Declaration also indicates dissatisfaction with the dynamic approach sometimes employed in the Court’s rulings (para 25.c). In the context of this fairly robust critique, the Brighton Declaration reveals the significant frustration with the Court on the parts of governments. In practice, a long list of more technical suggestions is put forward that all seek to restrict and/or refocus the Court, including: Exploiting the full potential of Protocol No 14 (para. 6); Giving greater prominence to the principle of subsidiarity/margin of appreciation (para 12.a, b); Adopting a strict approach to manifestly ill-founded applications (para 15.d); Allowing governments to request a separate decision on admissibility (para 15.f); Tightening the requirement for the exhaustion of domestic remedies (para 15.g); Expanding the scope of committees’ decisions under Article 28, para 1 (para 20.f); Simplifying the application procedures (para 20.g); Amending the Rules of Court to make it obligatory for Chambers to relinquish jurisdiction to Grand Chambers when departing from settled case law (para 23); and Amending the Rules of Court to include vice-presidents of Sections in the Grand Chamber (para 25.e). The Brighton Declaration requests the drafting of additional protocols reflecting these proposals. The now finished Protocols No 15 and No 16 make the following changes as they: Introduce national courts’ access to advisory opinions from the Court (Protocol No 16; Brighton, para 12.d); Introduce a reference to the principle of subsidiarity and the margin of appreciation in the Preamble (Protocol No 15, Article 1; Brighton, para 12.b); Introduce an age limit for the appointment of judges (Protocol No 15, Article 2; Brighton, para 25.f); Take away the parties’ right to object to Chambers’ relinquishment of jurisdiction to the Grand Chamber (Protocol No 15, Article 3; Brighton, para 25.d); Shorten the time limit for applications from 6 to 4 months (Protocol No 15, Article 4; Brighton, para 15.a); Extend the scope of the significant disadvantage admissibility provision (Protocol No 15, Article 5; Brighton, para 15.c). Most of these elements point to a new, more restricted role for the Court vis-à-vis national institutions. The boldest statements to that effect are made in Section G, paras 30–33 of the Declaration which states that the governments will revisit the question of reform of the Court in both the near and longer term, noting ‘it may be necessary to evaluate the fundamental role and nature of the Court’ (para 31). Some indication is given that a more restricted role is envisaged: the Court shall enhance its ability to ‘to address serious violations promptly and effectively’ (para 31); ‘Effective implementation of the Convention at national level will permit the Court in the longer term to take on a more focused and targeted role’ (para 32, emphasis added); ‘The Convention system must support States in fulfilling their primary responsibility to implement the Convention at national level’ (32); ‘In response to more effective implementation at the national level, the Court should be in a position to focus its efforts on serious or widespread violations, systemic and structural problems, and important questions of interpretation and application of the Convention, and hence would need to remedy fewer violations itself and consequently deliver fewer judgments’ (para 33, emphasis added). This language—which is very clear considering that the document was co-authored by 47 Member States—succinctly lays out a new agenda for the Court. Particularly striking is para 33 as it represents a clear deviation from the reform agenda that marked Protocol No 14 and all other prior reforms. When former president of the Court Luzius Wildhaber made similar suggestions in 2003,22 his ideas were rejected by both activists and politicians. Ten years later, the idea of a more focused role for the Court in combination with an enhanced capacity to address the most serious violations of the ECHR has become the formal policy of the Member States of the CoE. But it was put forward in a spirit very different from Wildhaber’s original suggestion. Institutional-rational reasons were at the heart of his suggestions; now the motivation was downright political. 3. Empirical Analysis There is little doubt that the governments of the CoE meant to send a very clear signal to the Court in 2012. The question is, however, whether and to what extent this has prompted actual change in Strasbourg. As noted above, the new Protocols have yet to enter into force, and a word search of the entire case law of the Court through the Hudoc database reveals that the Court has referred to the Brighton Declaration only twice,23 and four times to Protocol No 15 (including all dissents).24 Protocol 16 has been referred to only once, and that in a dissenting opinion.25 As argued above, it cannot be inferred from the absence of formal references that legal change has not occurred as a result of the Declaration and the political signal it sends. In lieu of references, the Strasbourg bench could have chosen to bow to political demands and simply changed some of its practices, at least in certain areas of law. To explore this and the other related questions discussed above, quantitative changes in the case law and caseload of the Court before and after the Brighton Declaration will now be examined. The period under scrutiny has been limited to 2009–2015. This allows assessment of the 3 years preceding the 2012 Brighton Declaration and the 3 years following that key year. Consequently, all decisions published before 2012 will be considered pre-Brighton in the following analyses—all decisions published after 2012 will be considered post-Brighton. Decisions published in 2012—the year of the Brighton Meeting and Declaration—will be classified as neither before nor after: it is impossible to empirically determine whether those decisions were or were not influenced by the Meeting, by the Declaration, or even by the version of it leaked in February 2012.26 The effect of the broader Brighton moment was, however, most likely already detectable in 2012. General changes in the case law of the ECtHR post-Brighton will be explored first, and this will be followed by a more detailed analysis of the frequency of the Court’s use of the margin of appreciation and subsidiarity before and after the Brighton Declaration. Against this backdrop, the article then tests for variations in the use of margin of appreciation in different legal sub-fields and with regard to different respondent states. A. General Evolution of the Court’s Case Law before and after the Brighton Declaration Although the novel critique included in the Brighton Declaration, and particularly its bold statement on the need for more subsidiarity, makes it stand out from prior reforms, it should not be forgotten that the Declaration also reflected general concerns about the growing caseload of the ECtHR, which was at an all-time high by the time the Brighton Declaration was negotiated. Some Member States were probably more impassioned by the steep rise in the Court’s case load than by the British criticism of judges and judgments and related wish for a new status quo. Part of the new agenda, as explicated in Section G, paras 30–33 of the Declaration, was to create a more focused Court that heard fewer cases and consequently passed fewer judgments. Greater subsidiarity was part of a larger rescue plan for the Court proposed by the British chairmanship, which found allies among Member States eager to find a way of relieving the overburdened Court; among other reasons, it found support due to its clear political stance. Notwithstanding the differences in what motivated the individual Member State governments, the evolution in the caseload is an important general indicator of possible change at the Court post-Brighton. As can be inferred from Figure 1 below, if the Brighton objective was a Court that heard fewer cases and issued fewer judgments, both objectives seem to have been achieved. Figure 1 shows a clear drop in the number of cases pending before a judicial formation, as well as a drop in the number of judgments in the period after Brighton. Figure 1. View largeDownload slide Number of cases pending and judgments. Figure 1. View largeDownload slide Number of cases pending and judgments. Figure 1 could further reveal either the Court’s remarkable productivity in recent years or its ability to reduce the number of cases pending. This is indeed not a result of more judgments but rather the consequence of the dismissal of a very significant number of pending cases; the number of judgments is in fact declining, as depicted. The Court has in practice cleared out the backlog by dismissing an impressive number of pending cases—86,201 in 2012, 89,738 in 2013 and 83,675 in 2014. Moreover, the new stricter admissibility criterion derived from Protocol No 14 (‘significant disadvantage’) is also likely to have resulted in a general reduction of cases allocated to a judicial body (for details, see Appendix 1). What is not revealed through analysis of these quantitative measures is that, after the backlog was eliminated, the remaining cases were in practice the more difficult ones. We estimate that the Court now has a backlog of 14,000 non-repetitive cases and 10,000 priority cases. In addition, many new incoming cases can be categorized as ‘difficult’.27 One preliminary conclusion, therefore, is that the reforms have so far clearly made a dent in the backlog and created a court that hears fewer cases and passes fewer judgments. But it has also created a Court that devotes a significant amount of time to dismissing cases. The tough question at hand is whether, by the sheer number of difficult backlog cases, the Court will in fact remain overburdened and: (i) be unable to process that many cases within a reasonable period of time and (ii) not yet be able enjoy its more focused role. Figure 2 explores these relationships further by measuring the output (number of applications judged + dismissed cases + cases struck off the list) against the number of pending cases per year, which is sometimes referred to as the case throughput of the Court. Figure 2. View largeDownload slide Judgments, case load and case throughput. Figure 2. View largeDownload slide Judgments, case load and case throughput. As can clearly be seen in Figure 2, the throughput of the Court increased after Brighton, meaning that the Court now processes a greater percentage of its pending cases either by judgment, by dismissal, or by striking the case off. However, although the rate went up sharply in 2012 it later dropped off, most notably in 2015. Indeed, throughput now seems to be too low for the Court to effectively carry out the more focussed role envisaged by the Brighton Declaration. If the Court was to both reduce its backlog and engage in a new, more focussed role, throughput should be at least 100 pct. as that would reduce total cases by the same number as enter they system. However, since there is already a pre-existing backlog, throughput would need to be approximately 115 pct. in order to create a balanced system within 5 years, based on the current number of backlog cases. That rate was only achieved in 2014 when the Court was most actively engaged in dismissing ill-founded cases. In fact, the current throughput rate will inevitably lead to an increase in the backlog of cases.28 To conclude this section: the Court has not yet been fully relieved of the burden of its backlog and it has not yet found a balance between incoming cases and output that allows for it to take up its new, more focussed role. Basically, although the accumulated number of pending cases is now significantly smaller, the Court still faces a great number of difficult cases—some 24,000—that will need to be dealt with in the near future. And it is likely that the backlog will start building up once again. B. Evolution in the Use of Margin of Appreciation and Principle of Subsidiarity The standard doctrine of the margin of appreciation has evolved in the jurisprudence of the Court mainly in connection with Articles 1, 13, 19 and 35(1).29 The Court developed it as a tool to deal with the complex institutional interfaces triggered by the Convention: the primary responsibility of the Member States to protect the substantial rights conferred by the Convention (Article 1) and the monitoring role of the court in this regard (Article 19) in combination with the principle of exhaustion of local remedies (Article 35(1)) as a prerequisite for the Convention right to an effective remedy (Article 13). Pre-Brighton, the Convention did not mention the margin of appreciation although it was frequently cited in the case law of the Court and the Commission. In fact, reference was made to ‘une certain marge d’appréciation’ as early as the Cyprus case, the very first case before of the Commission.30 This subsequently evolved into the English language notion of ‘margin of appreciation’. This sub-section explores empirically detectable change in use of either the margin of appreciation or subsidiarity in the case law of the Court following the Brighton Declaration31 by testing for word frequency as well as by employing more complex methods as explained in the individual analyses. The basic objective is to attempt to detect any potential change in the use of the doctrines of margin of appreciation or subsidiarity in the case law. Figure 3 explores the potential increase in use of the margin of appreciation taking three variables into account: the actual number of references made to it in case law, the quantitative development of the case law and the relative development of references to the margin of appreciation as a percentage of total case law. Figure 3. View largeDownload slide Development of case law versus margin of appreciation. Figure 3. View largeDownload slide Development of case law versus margin of appreciation. Although there is an overall decline in the number of judgments throughout the entire period under scrutiny, Figure 3 shows that the actual number of cases where either the margin of appreciation or subsidiarity are cited is roughly stable over time. This suggests that there is a statistically significant increase in the percentage of cases that refer to either the margin of appreciation or subsidiarity over the entire period.32 However, this is a general trend that had already begun before the Brighton Declaration—growth since 2012 is roughly 2.5%, and 5% over the entire period. This finding echoes the results of an earlier investigation by Mowbray, who argued that references to the margin of appreciation increased following the 2010 Interlaken Declaration.33 There is, in other words, a growth in the number of references although it is impossible to say whether this was triggered by the Brighton Declaration or the earlier Interlaken Declaration as the growth pattern is roughly the same over the entire period. A closer look at the case law of the various chambers of the Court shows a difference between the ordinary chambers and the Grand Chamber in this regard. This is depicted in Figure 4 which measures the occurrence of margin of appreciation or subsidiarity cases relative to the total number of cases in both chambers. Figure 4. View largeDownload slide Margin of appreciation cases per chamber as percentage of the total number of court cases. Figure 4. View largeDownload slide Margin of appreciation cases per chamber as percentage of the total number of court cases. The picture that emerges is that the relative increase in references is mainly detectable at the level of ordinary chambers, and not in the case law of the Grand Chamber. Figure 5 breaks down the general tendencies by disaggregating the broader doctrine into four elements: margin of appreciation, principle of subsidiarity, the seemingly more recent doctrine of ‘wide(r) margin of appreciation’, and, finally, the ‘narrow(er) margin of appreciation’—an expression that would typically indicate the development of the increase of margin of appreciation, but in the opposite direction. Figure 5 calculates the occurrences of these terms by measuring the frequency per million of occurrence of the different expressions. Frequency per million is a standard measure used to express the relevant popularity of a word or expression by counting the average number of times it appears per million words in the corpus of text.34 Figure 5. View largeDownload slide The evolution of the different expressions in the Grand Chamber before and after 2012. Figure 5. View largeDownload slide The evolution of the different expressions in the Grand Chamber before and after 2012. Figure 5 shows a general increase in margin of appreciation references over the entire period. Use of ‘wide(r) margin’ increases (see further below), but only by a small amount. Reference to the principle of subsidiarity in fact decreases slightly. Narrow(er) margin of appreciation remains stable over the entire period. The overall development, taking both the ordinary chambers and the Grand Chamber into account, can be further illustrated by introducing a more complex metric. Figure 6 measures the development in popularity of the relevant expressions. Popularity is a simple metric we devised to show how high a certain expression ranks within a given set of texts. In plain terms, it is inversely analogous to what the popularity ranking of an expression is—that is, it measures how frequently a given expression is used in comparison with all other expressions in a text corpus.35 Figure 6. View largeDownload slide Popularity of ‘margin of appreciation’ expressions. Figure 6. View largeDownload slide Popularity of ‘margin of appreciation’ expressions. What is revealed by applying these more complex measures is that the popularity of the expressions ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ increases—whilst subsidiarity is roughly stable over time. The same is true of ‘narrow(er) margin’. However, both ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ climb the most during the period leading up to the Brighton Declaration—and then actually remain stable at the new higher level of popularity. In line with Mowbray’s analysis cited above, there is good reason to see the rise in use of the greater margin of appreciation as part of a broader trend that started at about the time of the 2010 Interlaken Declaration.36 That said, the usage of margin (and wide(r) margin) of appreciation remains high following the Brighton Declaration. In that sense, by the time the Court received the political message, the new developments were already underway. C. Variations in the Use of Subsidiarity by Legal Field and Member State As explained above, the margin of appreciation is constructed in the doctrine by reference to the more institutional and procedural components of the European human rights regime. For this analysis, it is, however, essential to determine where the doctrine is most frequently used in the various subsections of European human rights law, and whether any differences in usage are detectable after the Brighton Declaration. The Articles of the Convention that have historically triggered the most criticism are of particular interest in this regard, notably Article 8 which provides the right to respect for private and family life, and which has in some cases prevented authorities from expulsing criminals who face danger in the country of destination or who would then be at risk of having their right to family life put in jeopardy. This sub-section starts out by determining which Articles are most frequently cited in conjunction with the margin of appreciation and then explores whether there are differences in use of the doctrine with regard to the various Member States. It has been suggested in the literature that certain countries receive ‘special treatment’ in Strasbourg37 especially the UK. Perhaps in reaction to its robust criticism, the Court may have been allowing the UK more margin of appreciation in recent years.38 Possible variation among the various Member States is investigated in the second part of the analysis. Figure 7 analyses the evolution in usage of either the margin of appreciation or subsidiarity in the context of specific articles of the ECHR that confer substantial rights which are frequently the subject of litigation (Articles 3, 6, 8, 10, 13 and 14) and two more procedural/institutional measures (Articles 34 and 35). The individual articles are identified based on analysis of Case Details provided by the Court in Hudoc. The percentages are calculated as the percentage of cases concerning a specific article against the totality of margin of appreciation or subsidiarity cases. Figure 7. View largeDownload slide Article percentages before and after 2012. Figure 7. View largeDownload slide Article percentages before and after 2012. The results are striking in two ways. First, except for Articles 3 and 8, no statistically significant evolution could be noted with regard to specific substantive rights before and after the Brighton Declaration. Article 35 on the exhaustion of local remedies is now, post-Brighton, the most frequently cited Article, with an increase of roughly 20% vis-à-vis the total case law regarding either the margin of appreciation or subsidiarity. This suggests that the usage of either margin of appreciation or subsidiarity has increased with regard to the controversial substantive rights contained in Articles 3 and 8. But even more striking is the realization that procedural aspects of European human rights law have become a key avenue for deciding on margin/subsidiarity. This ‘proceduralisation’ is a development that one sitting ECtHR judge has suggested is the way forward for the Strasbourg Court.39 Figure 8 explores this development further by visualizing the development of specific articles over time with regard to the margin of appreciation and subsidiarity. To test for this alleged proceduralization of European human rights law,40 the Articles included are those typically associated with the doctrine of the margin of appreciation and subsidiarity (Articles 13, 19 and 41). In addition, the Figure depicts the development of certain substantive rights central to the Court’s jurisprudence (Articles 6 and 8). Figure 8. View largeDownload slide Margin of appreciation cases per article. Figure 8. View largeDownload slide Margin of appreciation cases per article. Two post-Brighton developments are noteworthy. First, the gradual increase in use of the margin of appreciation in Article 8 cases (respect for private and family life) and a more pronounced growth in the use of the margin of appreciation in Article 35 cases (admissibility criteria). Article 3 fluctuates quite a bit over the period but shows a net increase, as also suggested by Figure 7. The other most frequently used articles in connection with margin of appreciation basically remain stable over the entire period: Articles 6 (fair trial), 13 (effective remedy) and 41(just satisfaction), as well as—although barely measurable—Article 19 (establishment of the Court). In addition, although Article 41 (just satisfaction) is, in the long run, the most frequently cited Article, by 2015, its trajectory aligns with Article 35 and it ultimately shows a slight decline over the entire period. Although the changes with regard to Article 35 are statistically significant, it is equally important to observe the increase, since 2012, in usage of the margin of appreciation in conjunction with Article 8, as this area of law is among the most controversial in many Member States, including the UK. The same goes for Article 3. There is no space here to go into the actual legal consequences of this increased frequency of references. But what is certain, at least at the statistical level of analysis, is that the greatest changes occurring around the time of the Brighton Declaration concerned Articles 3, 8 and 35. Figure 9 disaggregates the doctrine of the margin of appreciation into ‘margin of appreciation’, ‘principle of subsidiarity’, ‘subsidiarity principle’ and ‘wide(r) margin of appreciation’ with regard to Articles 6, 8 and 35. Article 6 is included as a point of comparison. The methodology used in Figure 9 is the same as in Figure 5 above, and measures the frequency per million of occurrence of the different expressions. The boxes in the plot below show the average frequency per million for each expression. Figure 9. View largeDownload slide Expressions per article. Figure 9. View largeDownload slide Expressions per article. In the case of Articles 8 and 35, there is growth in the use of ‘margin of appreciation’ and ‘wide(r) margin of appreciation’. References to ‘subsidiarity’ remain roughly stable. Article 3 develops somewhat differently—margin decreases after 2012, whilst subsidiarity increases. Comparatively, with regard to Article 6, there is a decline across all categories. It thus emerges that the main differences following the Brighton Declaration with regard to the doctrines of margin of appreciation and subsidiarity are indeed to be found with regard to the Articles 3, 8 and 35. This leads to the related question of whether this is mainly the result of cases originating from certain specific countries—or whether there is a general trend. Figure 10 visualizes the distribution of margin and subsidiarity cases per respondent state. Figure 10a lists the top-5 countries in terms of number of margin cases compared to the total number of margin of appreciation cases before and after 2012. Figure 10b repeats the same analysis by including all countries with more than 4 pct. of all margin cases. Figure 10. View largeDownload slide (a) Margin of appreciation per country. (b) Division of margin of appreciation cases per country. Figure 10. View largeDownload slide (a) Margin of appreciation per country. (b) Division of margin of appreciation cases per country. Figures 10a and b somewhat unsurprisingly show that the most frequent respondent states overall—such as Poland, Russia and Turkey—also come out ahead with regard to margin of appreciation/subsidiarity cases. Interestingly, the UK, which accounts for a much smaller percentage of the total number of cases, makes it into the top-5—but only in the period before 2012. After Brighton, the UK is below 4 pct. and thus below the threshold applied here. Figure 11a and b visualize the percentage of cases involving either the margin of appreciation or subsidiarity with regard to total cases judged per respondent state, both before the Brighton Declaration (11a) and after (11b). The respondent states are also ranked according to percentage of cases involving margin or subsidiarity compared to the total number of cases involving that state that went to judgment. The figures only include respondent states that account for more than 1 pct. of the total number of judgments for each period. Figure 11. View largeDownload slide (a) Percentage of margin cases before 2012. (b) Percentage of margin cases after 2012. Figure 11. View largeDownload slide (a) Percentage of margin cases before 2012. (b) Percentage of margin cases after 2012. Appendix 1. View largeDownload slide Applications allocated to judicial formation. Appendix 1. View largeDownload slide Applications allocated to judicial formation. The two figures reveal a significant disparity between the respondent states with regard to how often either the margin of appreciation or subsidiarity is evoked in judgments. Before the Brighton Declaration, three founding Western European Member States, Austria, Finland and the UK, topped the list with more than 40 pct. of their cases involving either margin or subsidiarity. In fourth place, we find Croatia with more than 35 pct. Hungary (fifth) and Germany (sixth) are both around 20 pct. After the Brighton Declaration, the list is topped by Lithuania with more than 40 pct., followed by Latvia, Austria and the UK, all with more than 35 pct. Germany has increased to 30 pct., while Croatia is down to seventh place with 27 pct. What Figures 11a and 11b make very clear is that the doctrines of margin of appreciation and subsidiarity are cited significantly more frequently in judgments that involve certain countries. To put it differently, Europe seems to be somewhat out of balance in this regard. The countries known for having the most cases brought before the ECtHR do not feature at the top of this scale. During the period studied, Russia had the most margin or subsidiarity cases overall (111), followed by Poland (90) and Turkey (71). However, three other countries stand out, namely Croatia (53), UK (49) and Hungary (49), all with a relatively high number of margin or subsidiarity cases overall, but also a very high percentage of such cases compared to their total number of cases (judgments) during the period. In other words, those countries are, relatively speaking, the ones most frequently involved in litigation on margin or subsidiarity questions. Austria also features prominently in the ranking, although this is based on a total of only 42 cases. This raises the question of whether Member States can gain legal advantage by frequently evoking either margin or subsidiarity before the Court and, notably, whether there are any discernible differences among Member States in this regard. To test for potential differences in outcome between newer versus older Member States, between East versus West, and between vocal critics of the system versus quieter Member States, Table 1 analyses the outcomes of cases involving the UK, Austria, Hungary and Croatia during the period studied. The rationale for selecting this small sample are as follows: During the period studied, all four countries were involved in comparable numbers of margin or subsidiarity cases and had a comparably high frequency of margin cases compared to the number of all judgments involving them. In a very simple statistical analysis, Table 1 considers margin or subsidiarity to be awarded if the Court finds no violations in a case where a margin or subsidiarity claim has been made. This is, of course, not an entirely precise way of measuring legal output, but cross-checking the statistical results with a reading of a sampling of the judgments suggests that it is sufficiently precise for purposes of this analysis. Table 1. Oucome of Magin Cases Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Table 1. Oucome of Magin Cases Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  Country  Total Articles  Total non-violations  Ratio  AUT  66  36  0.55  GBR  71  42  0.59  HRV  69  17  0.25  HUN  69  17  0.25  In Table 1, we measure the ratio of margin of appreciation or subsidiarity by counting the total and cumulative number of Articles (‘Total Articles’) on which cases have been litigated where margin or subsidiarity was invoked by the four respondent states, as well as the cumulative number of non-violations of Articles in these cases.41 The findings are rather striking. The UK is the most successful respondent state with a ratio of success of 59 pct. in cases involving margin or subsidiarity. Austria follows closely with 55 pct. However, the success rates of Hungary and Croatia are considerable lower, with both at 25 pct. In other words, the two Western and original Member States are more than twice as successful when invoking margin or subsidiarity than the two new, Eastern European Member States. This raises the question of whether more, highly critical discourse in the respondent states produces a wider margin or subsidiarity—something suggested in qualitative studies of the Court.42 A recent study notes that the UK’s relationship with Strasbourg is characterized by its ‘strong criticism’, Hungary’s by its ‘moderate criticism’ (although it has become increasingly critical in recent years), while Austria’s relationship is characterized by its ‘sparse criticism’.43 Croatia is not included in that analysis, but would probably fall under the category of ‘sparse criticism’. The statistical analysis as conducted does not reveal a pattern that could indicate that the more strident the criticism, the greater the margin or subsidiarity. Rather, the differences we observe are between old and new, West and East. One plausible explanation for this pattern is that the ECtHR’s purportedly new, more procedural approach favours Member States that can be assumed to have strong legal and political systems. In other words, the new Member States—all from the East—which over the past two and a half decades have been reorganizing their legal systems, might have a harder time succeeding in the new, more procedural framework of assessment. An alternative explanation would be that Western European lawyers have been better at integrating the alleged new approaches in Strasbourg into their litigation strategies. A third explanation would be that the ECtHR is generally less likely to find violations against so-called high-reputation states such as the UK.44 All three explanations are, however, prone to selection bias. Not all countries have similar cases brought against them, and therefore, the general likelihood of the ECtHR finding a violation might be conditioned by this rather than by other factors. 4. DISCUSSION AND CONCLUSION The overarching research question dealt with in this article is whether the Brighton Declaration has produced anything like a New Deal on European human rights. As argued in the opening section, this envisaged New Deal would primarily shift responsibility for human rights towards the law and politics of the Member States. In short, greater subsidiarity would apply. And, because of this greater subsidiarity, the Court would be able to take up a novel and more focused role. The findings provide several answers to the research question. First, the Court’s case law from the period before and the period after the Brighton Declaration was analysed in order to ascertain whether the Court was moving towards achieving the Declaration’s objective, indeed whether fewer cases were being heard, enabling the Court to work in a more focused manner. Although the backlog of cases has largely been cleared away since 2012, analysis of the throughput, especially of the last few years, puts into question whether the ECtHR is yet in a position to execute its new, more focused role. Analysis of the data leads to the conclusion that, even after recent reforms, the current proportion of input to output of cases has not yet triggered that evolution in the Court’s role. Second, the evolution in use of the margin of appreciation and subsidiarity was analysed. We found that there has been a steady increase in references made to either margin or subsidiarity, although this trend dates to the Interlaken Declaration and has kept to the same growth pattern ever since. We further observed that most of the increased references could be attributed to the ordinary chambers, whilst the number of references made in the Grand Chamber remained more stable. However as depicted in Figure 6 above, by disaggregating the different usages of the terms margin and subsidiarity, we were able to detect a significant increase in use of the expressions ‘margin of appreciation’ and ‘wide(r) margin of appreciation’. Although use of both was on the increase prior to Brighton, usage has remained continuously high since. This suggests that the message conveyed in Brighton was not lost on Strasbourg. In the final analytical section, variation in the use of margin or subsidiarity in different legal fields and among Member States was tested. First, we identified which Articles in the Convention are most often invoked in cases involving margin or subsidiarity, which led to two striking observations. The substantive rights Articles 3 and 8 both saw significant growth after the Brighton Declaration whilst the other Articles remained stable. The most significant increase in usage was however in cases that involve Article 35 which, post Brighton, has increased by approximately 20 pct. We then explored the evolution of these articles over time. Again, we noted that the most striking developments concerned Articles 8 and 35. We then disaggregated the data into the different expressions of margin and subsidiarity. In cases involving both Articles 8 and 35 there was an increased use of ‘margin of appreciation’ and ‘wide(r) margin of appreciation’ after the Brighton Declaration. References to ‘subsidiarity’ and ‘narrow(er) margin’ remained stable over time. We then tested for variation in the use of margin and subsidiarity among the various Member States. Although the countries with the most cases overall top the list, when we measured the relative frequency of how often either the margin of appreciation or subsidiarity are evoked by a specific state, we observed very significant variation among the Member States. Before the Brighton Declaration, margin or subsidiarity claims were most frequently made by Austria, Finland and the UK—more than 40 pct. of all their cases involved margin or subsidiary—followed by Croatia and Hungary. Post-Brighton, the most frequent user was Lithuania with more than 40 pct., followed by Latvia, Austria and the UK, all with more than 35 pct. We then tested for differences in the success rates of a sample of four countries, all very frequent users of the doctrine, when they claimed margin of appreciation or subsidiarity. Strikingly, Austria and the UK, two of the founding, Western Member States, were more than twice as successful as the new, Eastern Member States of Hungary and Croatia. We could conclude that countries strongly critical of the ECtHR are not necessarily more successful when they stand before it. Geography seems to be the greatest contributing factor—Western states clearly come out ahead in our sample. We could conclude, tentatively, that the supposedly new approach of giving more weight to procedural aspects of national human rights protection tends to create a bias that favours Western states, which are assumed to offer more solid legal guarantees. Alternative explanations were however also presented. When read together, the statistical analyses conducted in this article suggest that the ECtHR does provide more subsidiarity overall following the Brighton Declaration. It does so by its greater use of the terms ‘margin of appreciation’ and ‘wide(r) margin’, particularly at the level of ordinary chambers. The increase is not a general phenomenon but instead mainly concerns cases that involve three specific areas of law: Article 8 on the right to privacy, Article 35 on access to the Court, and, to a lesser degree, Article 3 on the prohibition of torture and inhuman and degrading treatment. Moreover, the increase in usage we detected began well before the Brighton Declaration, and was possibly triggered by the Interlaken Declaration of 2010. Nevertheless, in all cases usage of the doctrine either continued at a high level or increased even further following the Brighton Declaration. All of this has theoretical implications. This article clearly suggests that an international institution like the ECtHR is receptive to external input of a non-legal or semi-legal nature. The Brighton Declaration is, however, difficult to place: while it is currently undoubtedly a soft law instrument, the event itself—the Brighton meeting and resulting declaration—might well be viewed as a shock to the system in light of the highly political context in which it took place. The most interesting take-away from this analysis is not whether it was the declaratory document that triggered change, or rather the political power-play surrounding it. The key finding in this regard is that the ECtHR cannot be seen to operate in splendid isolation from politics. The Court is, in other words, receptive to political signals—either in the form of declaratory documents or critical discourse. It is important to understand this when speculating on the further evolution of the Court and its ability to adapt to the changing frameworks of power and politics in Europe. In this regard, it is particularly striking that we see the greatest change regarding Article 8 cases. That is an area of law that has prompted significant criticism of Strasbourg jurisprudence in recent years, especially in the UK. Our analysis contributes to the legal literature on subsidiarity by providing the first-ever systematic analysis documenting the evolution of the usage of margin and subsidiarity by the ECtHR, which generally confirms the work of legal scholars who have suggested, based on qualitative studies of individual cases, that usage of the doctrine has increased in recent years. This study fully supports those analyses of the doctrine, but it also documents its highly uneven development—regarding both the various areas of substantive law and the various Member States. Some Member States invoke the doctrine far more frequently than others, and Western states seem to profit most from frequent litigation. This is especially true of the UK that has the highest detected win rate in cases involving the doctrine. This links directly to Judge Spano’s remarks on the alleged ‘proceduralisation’ of the doctrine, the final theory considered in the analysis, in which we detect an increase in the use of Article 35 in connection with the doctrine, which could be indicative of such a change.45 The statistical analysis is, however, not conclusive in this regard. Yet, the strikingly higher win rate of Western Member States in cases involving the doctrine might, as suggested, be indicative of a similar transformation in the reasoning of the ECtHR. It is noteworthy that Member States with well-established legal and political systems come out ahead in this regard. This could indicate that the Court is more inclined to be deferential to those systems than to the more recently established democratic systems of Eastern Europe. In conclusion: Has the Brighton Declaration indeed changed European human rights? The Court has not turned into a more focused institution—it remains burdened by a heavy caseload. The most recent statistics confirms this finding by noting the imbalance between input and output at the Court. According to the Court’s own, most recently published statistics, 53,500 applications were allocated to a judicial formation in 2016, an overall increase of 32% compared with 2015.46 Yet, the Court has in some respects met the objectives of the Brighton Declaration. The increase in subsidiarity is significant and strongly suggests an overall change in this regard. Moreover, the greater deference given to Member States that can formally document the seriousness of their legal and political systems in fulfilling the obligations of the Convention also suggests that real change has occurred. The New Deal on European human rights is being implemented—but it is an on-going process rather than an accomplished transformation. The statistical analysis has been facilitated by Ioannis Panagis, a computer scientists and data specialist at iCourts. This research is funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of iCourts. A special thanks to the anonymous reviewers and Başak Çalı and Shai Dothan for feedback on this article. This research is funded by the Danish National Research Foundation Grant no. DNRF105 and conducted under the auspices of iCourts. Footnotes 1 Brighton Declaration, adopted at the High-Level Conference on the Future of the European Court of Human Rights, 19 April 2012. Available at <http://www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf> accessed 15 August 2017. 2 For an analysis of the evolution of cases before the Court, see appendix 1 in Mikael Rask Madsen, ‘The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash’ (2016) 79 Law & Contemporary Problems, 141-78. 3 Spyridon Flogaitis, Tom Zwart and Julie Fraser (eds), The European Court Of Human Rights And Its Discontents: Turning Criticism into Strength (Edward Elgar 2013) 32–35 4 Hirst v the United Kingdom (No 2) App no 74025/01 (ECtHR 2005). 5 Some of the most controversial ideas originally put forward by the British chairmanship, such as a suggested new provision on ‘duly examined’ cases which would have significantly limited the right to individual petition, never made it into the final Declaration. See Antonio Bultrini, ‘The Future of the European Convention on Human Rights after the Brighton Conference’ (2012) 12 IAI Working Papers 1. 6 Madsen (n 2) 169 <http://www.iai.it/sites/default/files/iaiwp1223.pdf> accessed 8 September 2017. 7 Laurence Helfer, ‘The Burdens and Benefits of Brighton’ (2012) 1 ESIL Reflections 1. Jonas Christoffersen and Mikael R. Madsen, ‘Postscript: Understanding the Past, Present and Future of the European Court of Human Rights’ in Jonas Christoffersen and Mikael R. Madsen (eds), The European Court of Human Rights between Law and Politics (2nd edn, OUP 2013). 8 Subsidiarity was already a key issue at the 2010 Interlaken Conference, but the context was significantly different. As explained by Alastair Mowbray, this was a conference held at the initiative of the Court and in a collaborative spirit seeking to find solutions to the growing caseload of the Court. Alastair Mowbray, ‘Subsidiarity and the European Convention on Human Rights’ (2015) Human Rights Law Review 15. 9 For a discussion of the complex relationship between authority and power, see Karen J. Alter, Laurence R. Helfer and Mikael Rask Madsen, ‘How Context Shapes the Authority of International Courts’ (2016) 79 Law & Contemporary Problems 1. 10 Jon Petter Rui, ‘The Interlaken, Izmir and Brighton Declarations: Towards a Paradigm Shift in the Strasbourg Court’s Interpretation of the European Convention of Human Rights’ (2013) 31 Nordic Journal of Human Rights 28. 11 Data set contains all case law of the ECtHR since its inception and will be made available at icourts.dk. The HUDOC search engine of the ECtHR has also been used for cross-checking purposes. See <http://www.echr.coe.int/Pages/home.aspx?p=home&c=> accessed 15 August 2017. 12 For a general discussion of soft law, see Jan Klabbers, ‘The Redundancy of Soft Law’ (1996) 65 Nordic Journal of International Law 167. Gregory Shaffer and Mark A Pollack, ‘Hard Vs. Soft Law: Alternatives, Complements and Antagonists in International Governance’ (2010) 94 Minnesota Law Review 706. 13 There is a large literature on critical junctures in the tradition of historical institutionalism. Theorizing exogenous shocks has played an important role in economic theory. For a general description of these approaches, please see Kathleen Thelen, ‘Historical Institutionalism in Comparative Politics’ (1999) 2 Annual Review of Political Science 369 and Dani Rodrik, Arvind Subramanian and Francesco Trebbi, ‘Institutions Rule: The Primacy of Institutions Over Geography and Integration in Economic Development’ (2004) 9 Journal of Economic Growth 131. 14 For example Madsen (n 2). 15 Urška Šadl and Mikael Rask Madsen, ‘Did the Financial Crisis Change European Citizenship Law? An Analysis of Citizenship Rights Adjudication Before and After the Financial Crisis’ (2016) 22 European Law Journal 40. 16 Robert Spano, ‘Universality or Diversity of Human Rights?: Strasbourg in the Age of Subsidiarity’ (2014) 14 Human Rights Law Review 487. See also the analysis in Dean Spielmann, ‘Whither the Margin of Appreciation?’ (2014) 67 Current Legal Problems 49. 17 Oddný Mjöll Arnardóttir, Rethinking the Two Margins of Appreciation (2014). See also Rui (n 1); Basak Cali, ‘Coping with Crisis: Towards a Variable Geometry in the Jurisprudence the European Court of Human Rights?’ (forthcoming 2018) Wisconsin Journal of International Law. 18 The most in-depth treatment of the question prior to this article is found in Alastair Mowbray’ work on subsidiarity which assesses changes in the Court’s treatment of subsidiarity during three eras: the old Court, the new Court (1999–2009) and the post-Interlaken Court (2010–). Mowbray’s analysis is discussed in the empirical analysis below. Mowbray (n 8). 19 On the role of the larger Member States in this regard, see Mikael Rask Madsen, ‘France, the UK and “Boomerang” of the Internationalization of Human Rights (1945–2000)’ in Simon Halliday and Patrick Schmidt (eds), Human Rights Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Hart Publishing 2004). 20 See Madsen (n 2). See also Flogaitis, Zwart and Fraser (n 3). 21 C. Colm O'Cinneide, ‘The European Court of Human Rights between Law and Politics edited by Jonas Christoffersen and Mikael Rask Madsen . Oxford: PB - OUP , 2011. 236 pp.’ (2012) 18 European Law Journal 731. 22 L. Luzius Wildhaber, ‘A Constitutional Future for the European Court of Human Rights’ (2002) 23 Human Rights Law Journal 161. 23 The cases found are: Case of Fabris v France Appl no 16574/08 (ECHR, 7 February 2013), and Case of Lillo-Stenberg and Sæther v Norway Appl no 13258/09 (ECHR, 16 January 2014). Checked on 1 December 2016. 24 The cases found are: Case of Parrillo v Italy Appl no 46470/11 (ECHR, 27 August 2015); Case of A and B v Norway Appl no 24130/11 and 29758/11 (ECHR, 15 November 2016); Oliari and others v Italy Appl no 18766/11 and 36030/11 (ECHR, 21 July 2015); and Erla Hlynsdottir v Iceland (No 3) Appl no 54145/10 (ECHR, 2 June 2015). Checked on 1 December 2016. 25 Jeunesse v Netherlands Appl no 12738/10 (ECHR 10 March2014). Checked on December 1, 2016. 26 See for instance, Le Monde (27 February 2012) <http://libertes.blog.lemonde.fr/2012/02/27/menaces-sur-la-cour-europeenne-des-droits-de-lhomme/> accessed 13 December 2016. 27 Jonas Christoffersen and Mikael Rask Madsen, ‘Menneskerettighedsdomstolens fremtid: Midtvejsstatus efter Brighton-erklæringen’ (2016) 1 Ugeskrift for Retsvæsen 4. 28 This is in fact already occurring. See <http://www.echr.coe.int/Documents/Stats_pending_2017_BIL.pdf> accessed 30 May 2017. 29 Mowbray (n 8) 27. This is arguably the more procedural version of margin of appreciation. With regard to some specific rights—for example, arts 10 and 15—the doctrine has developed particular elements. 30 For a discussion, see Spielmann (n 16) 51. 31 In the empirical analyses presented both margin of appreciation and subsidiarity are included when testing for developments in the use of the doctrine. 32 To be sure, a reference does of course not imply that there necessarily is found a violation in the case. 33 Mowbray (n 8). These changes might also be due to the kind of cases brought before the court, that is, it might have faced more cases in areas which often involve subsidiarity. 34 The underlying mathematical metric is explained here: <https://www.sketchengine.co.uk/documentation/simple-maths/#example> accessed 17 January 2017. 35 The popularity analysis is inspired by Zipf’s law, an empirical law stating that the probability of a word having the Rth rank is roughly 1/r, ie it does not depend on the frequency of the term but rather on the rank itself. As a consequence, the observed popularity rankings are independent of the total size and the total number of underlying texts. Therefore, the ranking of an expression in different court years, and hence its popularity, is comparable even when the number of decisions per year is different. A technical note: the results presented in the Figure were smoothed out by applying a logarithm. 36 Mowbray (n 8). 37 For example, Cali (n 17). Shai Dothan has attempted to theorize this phenomenon in a reputational model, claiming that high-reputation states pose a larger threat to the court’s reputation and therefore receive more lenient treatment. See Shai Dothan, Reputation and Judicial Tactics: A Theory of National and International Courts (CUP 2014). 38 For additional references, see Madsen (n 2) 171. 39 Spano (n 16). See also the discussion in the introduction of this article. 40 Proceduralization is understood as defined in ibid. Other authors use it differently. See, for example, Janneke Gerards and Eva Brems (eds), Procedural Review in European Fundamental Rights Cases (CUP 2017). 41 For the number of total Articles, we included arts 1–18, and Protocol No 1, arts 1–4. We have, therefore, excluded arguments that touch on procedural matters—for instance, art 35, which cannot be violated. 42 Cali (n 17). 43 Patricia Popelier, Sarah Lambrecht and Koon Lemmens (eds), Criticism of the European Court of Human Rights – Shifting the Convention System: Counter-dynamics at the National Level (Intersentia 2016). 44 See Dothan (n 37). 45 For further analysis one could explore the role of the notion of significant disadvantage of art 35 in this regard. 46 European Court of Human Rights, Analysis of Statistics 2016 (Report of January 2017, Strasbourg). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of International Dispute SettlementOxford University Press

Published: Oct 30, 2017

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