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Hastings International and Comparative Law Review

Abstract

An international tribunal such as the European Court of Human Rights is often lauded for its protection of human rights. Yet, there is room for improvement. The Court's adjudication style would benefit from more structured balancing of competing interests. Not only would greater structure serve to enhance the Court's efficiency and promote legal certainty, but it would also help to clarify the Court's subsidiary role in relation to national authorities when it comes to the protection of human rights. In bringing more structure to the Court's decision-making process, inspiration can be drawn from the debate regarding the balancing/categorization continuum to be found most notably in United States constitutional law. Positioning the Court's jurisprudence at either end of this continuum would neither serve to enhance its decision-making, nor would it reflect reality. Instead its method of adjudication should seek to reconcile the best of both extremes by passing judgments that not only give guidance to how future balancing exercises should be conducted, but also recognize national authorities' margin of appreciation in applying the European Convention on Human Rights. Three case studies are explored to conceptualize structured balancing, namely questions regarding the Islamic headscarf, physician assisted suicides and the dissolution of political parties.

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