The Courts and the ECHR:
A Principled Approach to the Strasbourg Jurisprudence
Eirik Bjorge
University of Oxford - Corpus Christi College; University of Oslo
April 13, 2012
Oxford Student Legal Studies Paper No. 01/2012
Abstract:
How ought the courts to approach a question under the European Convention on Human Rights which has not four-square been settled by the European Court of Human Rights at Strasbourg?
This article argues in favour of an approach to Convention rights by national courts that focuses on the principles to be found in the ECHR as developed by the European Court. This is in some contrast to the approach currently adopted by the majority of the UK Supreme Court, in for example Ambrose. The suggested approach is more in line with the general approach of the common law to legal precedent, which for more than a hundred years has been that the courts in reaching their decision in each case draw upon the principles established in earlier authorities.
How ought the courts to approach a question under the European Convention on Human Rights which has not four-square been settled by the European Court of Human Rights at Strasbourg?
This article argues in favour of an approach to Convention rights by national courts that focuses on the principles to be found in the ECHR as developed by the European Court. This is in some contrast to the approach currently adopted by the majority of the UK Supreme Court, in for example Ambrose. The suggested approach is more in line with the general approach of the common law to legal precedent, which for more than a hundred years has been that the courts in reaching their decision in each case draw upon the principles established in earlier authorities.
Number of Pages in PDF File: 23
Keywords: Ullah, ECHR, UK Supreme Court, Ambrose, 'no more, no less', principled approachFull text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2039378
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