urn_isbn_978-952-61-1770-6

Emphasis on dialogueDialogue between the ECtHR and national courts has been emphasised on thebasis that greater involvement and direction from Contracting Parties wouldstrengthen the legitimacy of the Strasbourg Court. 179 Furthermore, failure by theECtHR to recognise the need for dialogue could eventually call the legitimacy ofits work into question and lead to a profound and damaging loss of confidence init. 180 Dialogue would also give the Contracting Parties and, more specifically, thehighest national courts, a certain amount of responsibility for legal developmentat the supranational level. The involvement of national perspectives at the supranationallevel has also been pointed out. 181The ECtHR’s engagement in cross-judicial communication is a characteristic ofeffective supranational adjudication. This commitment to ‘solidarity’ over ‘insularity’strengthens its adjudication by implicitly acknowledging the commonality ofthe legal problems at issue and their (partial) independence from particular jurisdictionallimitations or culturally limited contexts. 182 Subsidiarity has been seen toencourage the integration of national and supranational normative discourses. 183The preliminary ruling system is familiar in the context of the EU, and itsadoption in the Strasbourg system has also been discussed. This would enable thenational courts to direct legal developments at the supranational level. It has beenargued that a procedure for making preliminary references to the ECtHR wouldcontribute to the legitimacy of the process of implementing supranational law inthe Contracting States, since it would offer more scope for judicial cooperationand dialogue. 184 However, the system of preliminary ruling has been criticisedin the EU context on the grounds that it blurs the line between the competenceof the CJEU and that of national courts. The discretion left to national courts issometimes rather narrow and illusory. 185Legitimacy dimensions of the ECtHRThree dimensions to the ECtHR’s legitimacy have been identified. Firstly, thereis a constitutive dimension which relates to concerns about whether there aregood reasons for an institution to exist in the first place, and whether those reasonsdemand deference to that institution’s decisions in the future. Furthermore,there are foundational arguments that justify the ECtHR’s right to take decisionsagainst states in the field of human rights.179See e.g. Lübbe-Wolff 2012, at 12–13; Hennette-Vauchez 2011, at 161–162. On different methods ofdialogue, see O’Boyle 2013, at 95–102.180O’Boyle 2013, at 103.181de Poorter 2013, at 209–210; O´Boyle 2013.182Helfer –Slaughter 1997, at 325–336.183Carozza 2003, at 75.184de Poorter 2013, at 211. For more on the advisory opinions in the context of the Convention, seeProtocol No. 16 to the Convention (CETS No. 214, not yet in force); Gragl 2013; Lübbe-Wolff 2012, at12–14.185Rasmussen 1986, at 244–253; Galetta 2010; Jacob 2014; Lenaerts – Maselis – Gutman 2014, at 231–242.For criticism of the CJEU’s activist role, see e.g. Rasmussen 1986, especially at 8–17; Micklitz – De Witte2012; Horsley 2013; Dawson – De Witte – Muir 2013.39