Article 53 and Minimum Protection by the European Court of Human Rights

Abstract

It is often emphasised that the European Convention on Human Rights (ECHR or Convention) offers only minimum protection and states are allowed to offer additional guarantees. Indeed, Article 53 ECHR obliges the European Court of Human Rights (ECtHR) to respect such national guarantees if they go beyond the Convention. Similar provisions are usually included in human rights treaties as ‘priority clauses’,which mean that human rights bodies should respect more protective national laws.In such a reading, Article 53 could both add to and detract from the protection offered by the Convention, especially in cases where national and Convention rights clash. Based on an analysis of the Court’s case law, this paper shows that the Court does not rely on Article 53 in such conflicting rights cases, but rather prefers to use avoidance and balancing strategies. Instead, the Court uses Article 53 to reinforce national fundamental rights protection, thereby reducing the risk of harming the minimum level of protection provided by the Convention.