Document Type

Article

Disciplines

International Law

Abstract

The enlargement of the Council of Europe at the end of the Cold War presents many significant challenges for its most well know creation, the European Court of Human Rights.' Given the prolific nature of the Court's jurisprudence both within and outside Europe, the implications of the Court's response for international human rights law are profound. This article explores the influence of the "local context" upon the Court's reasoning in cases brought against the newer members of the Council of Europe from Central and Eastern Europe.

In an important sense, the local context gives rise to every case brought before the European Court of Human Rights. However, in this article the local context is taken to mean more than the combination of facts upon which the case is based. The local context is understood here as relating to the circumstances within which those facts are located. The specific and overarching circumstances with which the European Court of Human Rights must presently cope include increased moral and cultural diversity within the Council of Europe and the specific conditions of democratic transition. 2 Cases in which these aspects of the local context have surfaced provide the starting point for the analysis presented here. These aspects of the local context highlight risks of divergence from existing standards during the process of democratic consolidation, but should also provide grounds for respecting diversity between Contracting Parties.

The jurisprudential issue considered here is the way in which the European Court of Human Rights has allowed the local context to affect its assessment of peacetime limitations upon human rights, since the rapid enlargement of the Council of Europe. Part I provides an introduction to the post-Cold War context, the enlargement of the Council of Europe, and its implications for reform of the European Human Rights system. Part II summarizes the European Court's jurisdiction and its standard methodology in the "peacetime limitation" cases.

Parts III and IV form the core of this article and demonstrate that the Court of Human Rights has allowed contextual factors like culture, morals and history to affect the balance between preventing divergence and respecting diversity in a variety of ways. The local context has had the potential both to encourage the Human Rights Court's especially close supervision of the new Contracting Parties' democratic transition and also, conversely, to justify some restrictions upon human rights. In addition to identifying and presenting the cases according to the extent to which the European Court has allowed the local context to play these opposing roles, the article addresses several important issues regarding the Court's approach to facilitating these ends.

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