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Parliaments and the European Court of Human Rights$
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Philip Leach and Alice Donald

Print publication date: 2016

Print ISBN-13: 9780198734246

Published to Oxford Scholarship Online: September 2016

DOI: 10.1093/acprof:oso/9780198734246.001.0001

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Human Rights, Democracy, and Legitimacy in the Convention System

Human Rights, Democracy, and Legitimacy in the Convention System

(p.113) 4 Human Rights, Democracy, and Legitimacy in the Convention System
Parliaments and the European Court of Human Rights

Alice Donald

Philip Leach

Oxford University Press

This chapter explores the relationship between human rights, democratic governance, and legitimate authority within the Convention system. It examines the distinction—and inter-relationship—between normative, legal, and social concepts of legitimacy. Further, it discusses the extent to which the Convention system is democratically legitimate, including the (potentially) legitimacy enhancing role of the Parliamentary Assembly of the Council of Europe. It argues that parliaments have strong reasons to defer to the interpretive authority of the European Court of Human Rights and respect its adjudicatory authority, since such engagement enhances their own legitimacy. It discusses how the Court might incentivize parliamentary engagement in the implementation of its judgments and Convention standards, by making assessment of the quality of parliamentary processes a systematic feature of its adjudications, in keeping with the principle of subsidiarity. The chapter considers—and rejects—arguments for ‘democratic override’ of judgments to which a majority of parliamentarians is opposed.

Keywords:   parliament, ECHR, Convention, court, human rights, legitimacy, democracy, Parliamentary Assembly, Council of Europe, subsidiarity

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