Jeffrey Kahn1; 1 Southern Methodist University Dedman School of Law, United States
Discussion
Effective 1 August 2021, Protocol 15 to the European Convention on Human Rights amends the Convention’s preamble to reference the “margin of appreciation” doctrine, a form of deference to a state’s view of its international legal obligations. But deference requires the assumption that the state acts in good faith toward those obligations. How does/should deference work when the existence of good faith itself falls under suspicion? The Convention’s Travaux Preparatoires express concern that pretextual claims by states are symptomatic of a regression toward authoritarianism. Article 18 was intended to guard against such misuse. It prohibits restriction of Convention rights and freedoms “for any purpose other than those for which they have been prescribed.” This paper examines this “anti-deference” mechanism, with Russia’s experiences before the Court in Strasbourg providing key evidence of Article 18’s evolution. It draws from recent work as a third-party intervenor in an important case awaiting decision, Navalnyy and Ofitserov v. Russia.
