urn_isbn_978-952-61-1770-6

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AcknowledgementsWhen I began my doctoral studies in 2007 I was more or less uncertain as to howto start: there were many interesting issues to study and write about. My topicwas related to the European human rights regime and the problems affectingit in respect of the use of different interpretative methods (mainly comparativemethod of interpretation). Admission to the E.MA international academic programmein human rights and democratisation in 2008 was crucial in allowingme to achieve a more specific focus. The year spent on the E.MA programme wasalso an eye-opener in terms of seeing the international academic world beyondmy home university. Having graduated from the E.MA programme and returnedhome in autumn 2009 I was ready to start the real work on my doctoral thesis.The first research plan was called ‘Constructive Comparative Human RightsLaw – A Study on the Comparative Argumentation in the Precedents of theECtHR’. While carrying out the research my interest turned more towards thebig questions over the ECtHR’s legitimacy and how it can be accomplished. Ifirst started writing a monograph, but soon found that the structure of the studywould be better served by an article-based thesis: each story required its ownseparate case-law data and analysis. In addition, the study was undertaken whileworking as a full-time lecturer in Constitutional Law. An article-based thesis bettersuited a teacher, given the frequency of unavoidable breaks in the writing ofthe PhD caused by teaching and other commitments.I would like to thank Prof. Elina Pirjatanniemi and Prof. Jenny E. Goldschmidtwho conducted a well-reasoned and profound preliminary review of the thesis.Prof. Pirjatanniemi also kindly agreed to be the opponent in respect of the thesis.Above all, I would like to thank, in the humblest and deepest way, my supervisorProf. Jaakko Husa for his unflagging support and guidance. I have him tothank for prompting me to begin my doctoral studies after attaining my master’sdegree and for encouraging me to look abroad from the outset. I am grateful thathe believed in this project also at times when my own confidence in it was not atits strongest. Under his supervision choosing the easiest way is, luckily, not anoption. Thank you Jaakko for setting the bar high enough.I would like to thank Judge, Docent, LLD Mirjami Paso for her sincere supportduring this process. Our countless discussions on legal argumentation andhuman rights have helped me in many ways. She has always found time to commenton and discuss my article manuscripts and texts. This has been of greaterimportance than she could ever imagine. Not only has she provided guidance inrespect of the substance of my topic, but also in respect of the whole writing process,not to mention life outside, where other things not connected with the PhDalso happen. Thank you Mirjami for so many things that I cannot even list here.
I would also like to thank Prof. Toomas Kotkas for his encouragement and forcommenting on my texts and article manuscripts. The writing process was at avery crucial stage when he came to the same hallway and his support has beenvery important.I am grateful to Prof. Tapio Määttä, the Head of UEF Law School, for his supportfrom the start of my doctoral studies, for hiring me first as an assistant inthe Law School and then for extending my contract as a lecturer in ConstitutionalLaw. I am deeply grateful that I was excused lecturing duties during the autumnsemester in order that I could finish the thesis.My colleagues at UEF Law School have been supportive and encouraging.University Lecturer Ulla Väätänen, in particular, has been an important discussionpartner not only in respect of the methodological issues involved inthis research project but also in respect of other and more important elements.Furthermore, Seita Romppanen has taken the same PhD journey at the sametime, which has made it possible for me to share with her the feelings and progressinvolved in this project.The language of the four peer-reviewed articles and this synthesis has beenchecked by several professionals. Sincere thanks are due to Rupert Haigh,Nicholas Kirkwood and Emma Nyhan for their excellent and profound work inthis regard.The editors of the journals in which my articles have been published havedone great work in pushing me to develop the arguments and main points outlinedin these papers. The comments provided in the review process took thearticles forward and crystallised the points I wanted to make. Therefore, I wouldlike to thank the editors and editors-in-chief of the European Human Rights LawReview, Finnish Yearbook of International Law, European Journal of Social Security andEuropean Journal of Legal Studies. Furthermore, I am grateful to the publishers(Thomson Reuters, Hart Publishing/Bloomsbury Publishing Ltd and Intersentia)for granting permissions to re-publish the articles in this thesis.This project has been a relatively long one, since sometimes unexpected andunwanted things happen in life which push academic projects to one side for awhile. I am grateful to my husband Ilkka for all his love and everything immeasurableand to my dad Kyösti and sister Anna-Maria for their never-ending loveand support. Without you I would not be me.I dedicate this work to the loving memory of my brave mum Riitta (1956-2012).Vuorela, 17 April 2015,Maija Dahlberg
Page 1: Maija DahlbergDo You Know It WhenYo
Page 4 and 5: MAIJA DAHLBERGDo You Know ItWhen Yo
Page 6 and 7: Dahlberg, MaijaDo You Know It When
Page 10 and 11: Contents1 INTRODUCTION.............
Page 12: ‘. . . even if law can effectuall
Page 15 and 16: The ECtHR’s extensive and dynamic
Page 17 and 18: not offer a blueprint as to how it
Page 19 and 20: Explaining the approach takenWhen d
Page 21 and 22: y reference to contexts, such as, f
Page 23 and 24: ights’ were indicated in the sear
Page 25 and 26: 24The third part (chapter 3) contai
Page 27 and 28: not resemble situation B for which
Page 29 and 30: principle of effectiveness in Airey
Page 31 and 32: The ECtHR’s patterns of argumenta
Page 33 and 34: its of the case are assessed. 128 T
Page 35 and 36: of legitimacy. 140 Furthermore, it
Page 37 and 38: inding on them. Therefore, the legi
Page 39 and 40: Reasons to follow the ECtHR’s jur
Page 41 and 42: Secondly, legitimacy has a performa
Page 43 and 44: legal reasoning. It has been argued
Page 45 and 46: trine. 211 The margin of appreciati
Page 47 and 48: When a judge resolves an interpreta
Page 49 and 50: Patterns of justificationOne can id
Page 51 and 52: I should stress that I do not link
Page 53 and 54: The acceptability of the ECtHR’s
Page 55 and 56: 3 ‘Once Upon a Time’ -Four Stor
Page 57 and 58: ather similar and are not bound to
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determining positive obligations. 2
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tions which are imposed on the stat
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In respect of the procedural aspect
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The ECtHR rather typically uses arg
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Chamber addressed the issue of pare
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To this extent, the picture seems i
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However, I emphasised that the inco
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of incorporating social rights with
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…it is obvious that the Court can
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cision is manifestly arbitrary’.
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Article 6. More significantly, in t
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such as the European Social Charter
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complished its judicial legitimacy,
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the systems and reasoning related t
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86Bossuyt, Marc, ‘The Court of St
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88Føllesdal, Andreas, ‘Legitimac
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90Helfer, Laurence - Slaughter, Ann
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92de S.-O.-L’E Lasser, Mitchel, J
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94Myjer, Egbert, ‘Pieter van Dijk
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96Smits, Jan, ’Comparative Law an
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Table of CasesTHE EUROPEAN COURT OF
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100Evans v. The United Kingdom, App
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102
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Article IIMAIJA PITKÄNEN: FAIR AND
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Fair and Balanced Positive Obligati
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Article IIIIMAIJA DAHLBERG: ‘THE
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Forthcoming in the Finnish Yearbook
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SHOULD SOCIAL RIGHTS BE INCLUDED IN
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Maija DahlbergSocial Charter, the C
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Maija DahlbergThere are strong argu
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Maija DahlbergAlso an additional pr
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Maija DahlbergThe majority, by sixt
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Maija DahlbergSocial rights come in
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Maija Dahlberghealth more clearly a
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Maija Dahlbergfair. In addition, th
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Maija DahlbergThe Court pointed out
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Maija Dahlbergthe Romanian Orthodox
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Maija DahlbergThe Court’s remaini
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Maija Dahlbergenjoying the status o
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Maija DahlbergLangford, M. (2008)
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‘ . . . IT IS NOT ITS TASK TO ACT
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2014] The ECtHR as a Court of Fourt
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