urn_isbn_978-952-61-1770-6

‘a living instrument’ and the doctrine of positive obligations of states, the ECtHRcould be considered as depriving governments and parliaments of their legislativepowers in that context. What is the legitimacy of this growing judicial powerfrom the point of view of the separation of powers? The legitimacy of this developmentof international judicial standard-setting in human rights law is based onrespect for the universal recognition of these rights, which urged European governmentsand parliaments themselves to create this kind of system for the protectionof human rights. Formal legitimacy, therefore, has already been achieved.Ways in which the ECtHR can restore its legitimacy have been suggested.These include the use of fact-finding missions, sticking to precedents, and notprescribing to states how its judgments should be executed. 193 Furthermore, inorder to restore legitimacy the emphasis must be on the interpretation of theConvention. For example, dynamic interpretations should not serve as a justificationfor creating new rights, especially when these were deliberately excludedfrom the Convention. 194 It has been argued that the ECtHR lacks an objectivestandard to structure and guide its exercise of discretion, and that the lack ofsuch a standard reduces its legitimacy. 195 The ECtHR itself would argue, however,that the consensus approach serves as such a standard, although there are certainunresolved issues with this approach, such as how to determine consensus. 196One remarkably effective way of restoring the ECtHR’s legitimacy would be toreduce its workload. 197There has been much discussion as to whether the ECtHR is a constitutionalcourt or one which dispenses justice in individual cases. 198 It has been highlightedthat if the ECtHR is a constitutional court, it is a remarkably narrow-minded one,because it does not seem to take constitutional arguments properly into account– with the exception of arguments focusing on rights. 199I divide legitimacy into two types: formal legitimacy and substance legitimacy.The aspect that relates to the outcome or consequences of the judgments is problematicsince it is impossible to evaluate the rightness of the outcome in humanrights cases. 200 Furthermore, evaluation of the consequences of the judgments isalso beyond what legal research alone can accomplish. In this study, legitimacybasically refers to two things: formality (process) and substance (acceptability).However, this study focuses on the substance side of legitimacy and argues thatsubstance legitimacy is of greater importance than formal legitimacy. Justifiabilityand acceptability are closely linked: in order for a judgment to be accepted, it mustfirst be justified. Because legitimacy is linked to acceptability, it is also linked to193Zwart 2013, at 82–87.194Ibid., at 88.195Ibid., at 89.196Dahlberg (‘comparative argumentation’ article), at 22–23, 36.197Zwart 2013, at 93–95.198See, for example, Costa 2011; Kumm 2004; Myjer 2012; Bates 2010, at 436–472; Christoffersen 2011,at 187–190.199Husa 2010, at 118.200Dzehtsiarou 2011, at 537–538.41