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When Human Rights Clash at the European Court of Human RightsConflict or Harmony?$
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Stijn Smet and Eva Brems

Print publication date: 2017

Print ISBN-13: 9780198795957

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780198795957.001.0001

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Conclusion—Conflicting Views on Conflicting Rights

Conclusion—Conflicting Views on Conflicting Rights

(p.242) Conclusion—Conflicting Views on Conflicting Rights
When Human Rights Clash at the European Court of Human Rights

Eva Brems

Oxford University Press

These concluding reflections analyse the approaches and stances adopted across the volume and, on that basis, highlight some of the bones of contention in current human rights scholarship on conflicting (Convention) rights. The first matter on which opinions diverge is ‘to name or not to name’, i.e. whether or not to explicitly identify a conflict between Convention rights. The second is that of ‘choice versus compromise’, i.e. whether a finding of conflicting rights automatically leads to a solution that prioritizes one right over the other, or whether instead a compromise between the conflicting rights is preferable. The third issue is that of ‘balancing’ as opposed to other approaches that allow to prioritize among conflicting rights. The final issue, on which diverging opinions are discussed, is that of subsidiarity and the margin of appreciation.

Keywords:   conflicts of rights, conflicting rights, European Court of Human Rights, ECtHR, identifying conflicts, compromise, balancing, subsidiarity

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