This Article will suggest that judges of the European Court of Human Rights (ECtHR) take into account both legal and non-legal considerations when deciding “hard” cases. This Article focuses on these legal considerations, emphasizing the legal, rather than the political, personality of the ECtHR. Legal considerations can be further divided into internal and external ones. The former originate from within the European Convention on Human Rights (Convention) system, such as the ECtHR case law or the law and practice of the Contracting Parties to the Convention. The latter are provisions borrowed from outside of the realm of the Convention, such as international treaties or laws and practices from nations outside of the Council of Europe. This Article will argue that reliance on internal, as opposed to external, sources can help minimize the challenges that the ECtHR is currently facing in regard to its legitimacy.

Continue reading What is Law for the European Court of Human Rights?