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The European Union and Beyond

Broadening the Margin of Appreciation? Political Resistance and the Deference towards Respondent States in European Court of Human Rights Judgments

Human Rights
Council of Europe
Øyvind Stiansen
Universitetet i Oslo
Øyvind Stiansen
Universitetet i Oslo

International and domestic courts are increasingly facing backlash from political actors. The European Court of Human Rights (ECtHR) is a case in point. Since the mid-2000s, this court has faced strong public criticism, threats of withdrawal, and attempts of reform initiated by important member states. During the same period, scholars have found evidence that the ECtHR has become less likely to rule against the consolidated democracies it relies on for support.

An important question is whether the criticism from respondent state has prompted changes in content of the ECtHR’s written opinions. For instance, even judgments that end up finding a violation in the respondent state might contain language aimed at providing domestic decision-makers with considerable leeway concerning how the violation is to be addressed. Alternatively, non-violation judgments may contain language that safeguards or even expands the role of the ECtHR in supervising national authorities. Understanding whether criticism changes the content of written opinions is important because such changes are likely to affect future decisions by the ECtHR and by domestic courts applying ECtHR case law.

Using the full corpus of all ECtHR judgments, this paper uses a dictionary-based approach to identify all discussions of the ``margin of appreciation’’ doctrine, concerning the appropriate deference the ECtHR should offer national authorities. Textual scaling methods are then used to measure how much deference individual judgments offer to decision-makers within respondent states. Going beyond the mere outcomes of judicial decisions, this paper thus offer insights in how the content of judicial doctrines is influenced by courts’ political environments.
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