The Impact of the New Reforms as Introduced within the ECHR Framework – with Focus on the Extended Application of the Principle Of Subsidiarity

Abstract: his paper analyses the structural principles used to apply the European Convention on Human Rights and Fundamental Freedoms [hereafter the ECHR or Convention] 1950. It reviews some of principles and tools of application utilised by the Strasbourg court when adjudicating to discern the rationale behind the instrument. The main issue that the thesis tackles relates to looking at the principle of subsidiarity and its evolution into the European Convention of Human Rights and Fundamental Freedoms judicial system. The paper seeks to identify the manner in which the concept of subsidiarity is defined. It makes comparison of various definitions of the concept and evaluates the rationale as to why these materialise. It looks to illustrate and examine the application of subsidiarity in existing structures within the Convention system. Furthermore the paper looks to contrast existing definitions of subsidiarity within other legal systems to that of the European Convention of Human Rights and Fundamental structure. Following on from this, there is commentary of the new reforms that seek to introduce the direct application of the principle of subsidiarity into the Convention system. The paper throughout will compare the historical application of this principle to that of the intended results of the new reforms. Therefore analysis of indirect versus direct subsidiarity will occur throughout. Furthermore analysis of the effects of the reforms is carried out to establish whether change is pending. Lastly the paper weighs the arguments for and against the direct application of the principle within the Convention system. Some contrast with existing as well as potential models of the application of subsidiarity will be discussed to paint an appropriate picture of the role that the principle may play in future human rights adjudication. An assessment of the role that the European Court of Human Rights plays and will continue to play in human rights protection application is also be examined. The focus of the research paper is to determine whether the extended emphasis on applying the Convention through the subsidiarity principle is one that will enhance human rights protections. In the thesis there are findings that the concept of subsidiarity is one that is interchangeable dependent upon the characteristics of the body or individual making use of this 4 particular terminology. The paper therefore contends that the principle of subsidiarity is one that is vague and flexible. This flexibility in turn allows subsidiarity to become quite the popular instrument for change and reform as it is adaptable to whoever holds its presence to hand. The paper finds that subsidiarity is a necessary instrument for the relationship of the Strasbourg Court as well as High Contracting Parties to exist on an acceptable and amicable level. The concept is also useful in making sense of the obscurities and critiques previously faced by the Court in its role as a supervisory mechanism. Furthermore the paper makes it clear that the concept although flexible does have an unshakeable foundation. This basis which derives from the idea of human dignity is what makes it possible for the principle of subsidiarity to be a positive instrument of change for human rights protection. Both human rights and the concept of subsidiarity derive their basis in the moral idea of enhancing the individual dignity and prosperity. The conclusions therefore within the research paper are that the greater application of the principle of subsidiarity within the European Convention system is one that is of benefit and will serve to enhance the protection of rights for individuals.