Introduction–Conflicts of Rights in Theoretical and Comparative Perspective

S Smet - When Human Rights Clash at the European Court of …, 2017 - papers.ssrn.com
When Human Rights Clash at the European Court of Human Rights …, 2017papers.ssrn.com
This introductory chapter frames the book's debate by delineating the extent of reasonable
disagreement on both the existence and resolution of human rights conflicts in the context of
the European Convention on Human Rights. Drawing on the core arguments of the book's
substantive chapters, the introduction highlights the central cleavages in the debate. The
chapter first discusses arguments deployed to deny the very existence of conflicts of rights,
as well as available counterarguments. It goes on to provide insight in different strategies …
Abstract
This introductory chapter frames the book’s debate by delineating the extent of reasonable disagreement on both the existence and resolution of human rights conflicts in the context of the European Convention on Human Rights. Drawing on the core arguments of the book’s substantive chapters, the introduction highlights the central cleavages in the debate. The chapter first discusses arguments deployed to deny the very existence of conflicts of rights, as well as available counterarguments. It goes on to provide insight in different strategies aimed at minimizing the occurrence of conflicts. It finally suggests that the resolution of genuine human rights conflicts runs along four axes: balancing versus non-balancing; compromise versus winner-take-all; ad hoc balancing versus definitional balancing; and substantive reasoning versus procedural checks. Where useful, the chapter provides linkages to broader scholarly and judicial debates by accentuating relevant theoretical approaches and comparative materials.
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