Subsidiarity, Margin of Appreciation and International Adjudication within a Cooperative Conception of Human Rights

The projected inclusion of the subsidiarity principle and the margin of appreciation doctrine in the preamble to the European Convention on Human Rights (ECHR) is a legal turn that deserves special attention. Is it a welcomed reform which will enhance the Strasbourg Court's often-questioned legitimacy vis-à-vis member states? Does it represent, as some non-governmental organizations have claimed, a setback for human rights in Europe? This article elaborates on these questions by first entering into the current debate on the nature of human rights. I suggest that a “cooperative” political understanding of these rights, which is based on claims of relational justice, is a suitable ground for a normative theory of international human rights adjudication. I then use this political conception to present a non-statist reading of the subsidiarity principle, which is in accord with an incrementalist approach to human rights requirements and with a rationalized version of the margin of appreciation doctrine. My holistic reading is consistent with the axiological aims of the ECHR system as a regional driver of human rights protection without damaging Strasbourg's legitimacy