(Original post by NYU2012)
I disagree. The ECHR only needs updating and refreshing if it isn't working; and the ECHR should only be left if it isn't working. The questions are closely linked.
It demonstrably isn't working because the judges are usurping to themselves powers that belong to the political institutions of the member states. The court is also in administrative chaos because of its organisational structure.
However the test for walking away from something is whether is confers no net benefit, not whether it is in need of repair.
I disagree on this point as well. I see absolutely no reason why a rights instrument needs democratic legitimacy in the sense you're talking about. If rights require democratic legitimacy, then they aren't rights, they're privileges.
Rights don't get to be voted on by the populous. If you can vote on someone's rights, they aren't then rights.
You are conflating the questions of whether a particular right exists with whether a particular individual has that right or has had that right infringed. 25 years ago there was no such property right as "database right". Parliament created that right. Having done so, it is ultimately a judicial question of fact and law whether a particular person possesses a right in a particular database. It is also a judicial question of fact whether someone else (including the State) has infringed that right.
You are referring to the second and third situations. If the executive or legislative arms of the State is to decide whether I have a right in a particular database or whether someone else has infringed that right, you are correct that my "right" is merely a privilege enjoyed at the whim of the State.
However, I am saying that the ECtHR is exerting an exorbitant and impermissible jurisdiction to create new rights. The creation of new rights requires (except in trivial or obvious cases) democratic legitimacy. Anything else is simply judicial tyranny.
Except when we examine the decisions coming out of Strasbourg, when referencing European consensus the judges clearly to point to where this practice is used.
That is an irrelevance. The criticism is not that the practice is not open. The criticism is that the European consensus is asserted rather than proved by evidence. Hence it is a consensus of the the guests at judges' dinner parties, not a consensus of Crimean Tartars, Norwegian fishermen or Welsh florists.
There is a secondary criticism. The ECtHR tends to hide behind state actors in decreeing a consensus. The ECtHR tends to take as the settled position, the legislative position of particular countries at a moment in time, ignoring the fact that something may be the subject of intense political controversy in that country. The Bedroom Tax and Scotland's continued membership of the UK have democratic legitimacy but so say that there is a consensus in their favour is an abuse of language.
This argument is incredibly unpersuasive to me.
(1) I'm a legal constitutionalist, so I think that judges should have strike down powers.
Don't worry. The Home Secretary has just announced that she will take action against non-violent extremists.
(2) Particularly within the UK under the HRA, I've argued that judicial deference should be almost non-existent. Because the HRA can create a dialogic model, there is no reason for an exercise of judicial restraint. In relation to the ECHR, I have yet to see the ECHR produce a 'radical' decision that is so far removed from modern conceptions of rights principle that its just outrageous. In fact, I've yet to see the ECHR move far or fast enough. For example, look at how long it took the ECtHR to allow legally recognized trans identities under Art 8; more recently, the ECtHR ruled that married trans individuals who live in countries without same-sex marriage must divorce, art 8 and art 12 offer them no protection.
Sigurjonsson v Iceland is just jaw dropping. This was an issue that was specifically debated in the discussion leading to the adoption of the ECHR. The states deliberately agreed to leave out a provision that would have resulted in the Sigurjonsson outcome. In the intervening period many state parties had continued to require membership of trde associations in order to carry on particular commercial activities. Furthermore trade guilds were buried deep in the heart of the Ius Commune of Europe.
(3) I'm mostly a Dworkinian and think that there is a 'right answer' to be reached irrespective of political opinion on the subject.
Dworkinian jurisprudence is simply a device to produce a supposedly non-convertible democratic socialist answer to any political question, and should be called out as such more frequently.