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Mikael Rask Madsen, Danish National Research Foundation’s Centre of Excellence for International Courts (iCourts) “Unity in Diversity” Reloaded? The European Court of Human Rights’ New Subsidiarity Doctrine and its Consequences

When the European Convention of Human Rights (ECHR) was drafted in the late 1940s and early 1950 the project was driven by geopolitical interests and was mainly put in place to sound the alarm if genuine democracy was threatened in the member states (Bates 2011; Madsen 2007; Simpson 2004). The real fear was Soviet expansionism into Western Europe and a robust institutional bulwark consisting of the European Court of Human Rights (ECtHR), the European Commission of Human Rights (EComHR) and the Committee of Ministers of the Council of Europe was put in place to defend the free world. While this set-up worked reasonably well, notably at the intergovernmental political level, the system itself eventually developed into a different kind of regime with a focus on providing individual justice in a growing number of member states. This raised fundamental questions as to the level of difference allowed within the common European human rights space. Basically, was the system to rest on minimum standards with room for domestic differences or was it to create uniform standards. In other words, how much diversity was allowed within the unified space? These questions came up already in the early 1990s but have received new attention in the context of the ECtHR’s recent turn towards a new procedural subsidiarity doctrine (Spano 2014; Spano 2018).  Scholars have started investigating both the new subsidiarity standard (Arnardóttir 2017; Arnardóttir 2014) and its consequences (Cali 2018; Madsen 2018). Based on limited data analysis, these initial studies suggest that the new approaches are possibly creating divergences within the space of European human rights where the established democracies tend to come out ahead. This paper picks up where these initial studies ended and explore more systematically and with a much larger dataset the hypothesis that the new subsidiarity doctrine is indeed introducing new forms of difference within European human rights. It proceeds as follows. In an initial section, the overriding question of unity in diversity – and its accompanying ideas of unity with uniformity and diversity without disintegration – is revisited. It then uses a big data approach to explore how this articulates in the actual case law of the ECtHR, seeking to identify patterns of change based on a set of variables of difference. In a third section, it discusses and concludes the findings of the paper with a view to its consequences for European human rights more generally.

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