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ECPR

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Theorising the European Court of Human Rights in the Separation of Powers

Human Rights
Courts
Europeanisation through Law
Matthew Saul
Inland Norway University of Applied Sciences
Matthew Saul
Inland Norway University of Applied Sciences

Abstract

Scholars theorise the authority and influence of the European Court of Human Rights (ECtHR) in national constitutional systems as part of the separation of powers. They follow traditional separation of powers theory, focusing on the ability of the ECtHR to perform its tasks adequately and in a manner that will allow for an internal check on the exercise of authority. Yet the ECtHR is fundamentally different from the other branches of government in that it is external to the state. This paper identifies and examines the legitimacy and effectiveness challenges which the ECtHR’s externality creates relative to the other branches of government. It argues that one of the ECtHR’s core challenges is how to generate awareness, knowledge, and interest in its work amongst the other branches of government. To meet this challenge, the paper proposes that the emphasis in theorising on the transnational separation of powers should shift from how to generate the mutual enforcement of roles, to how to foster mutual empowerment to fulfil roles.