Squaring the circle at the battle at Brighton: is the war between protecting human rights or respecting sovereignty over, or has it just begun?*

How should the European Court of Human Rights best ‘balance’ respect for ‘the sovereignty of Contracting Parties with their obligations under the Convention [on Human Rights]’? 1 Long simmering conflicts about this aspect of the European Court of Human Rights (ECtHR, the Court) came to a boil prior to the 2012 high-level conference at Brighton. The result at Brighton was an innocuous-looking addition to the Preamble of the European Convention on Human Rights (ECHR), now expressed in Protocol 15 to the Convention: [T]he High Contracting Parties, in accordance with the principle of subsidiarity , have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and … in doing so they enjoy a margin of appreciation , subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention. 2 Will these references to subsidiarity guide the Court’s attempt to respect both the Treaty and its sovereign creators by granting the latter a certain scope of discretion – a margin of appreciation (the margin) which differs from its current practice?