Loyalty, Subsidiarity, and Article 18 echr: How the ECtHR Deals with Mala Fide Limitations of Rights

TheECHR system is premised on the presumption of state good faith. However, at least one article of the Convention does not adhere to this presumption. This is Article 18 echr, an idiosyncratic and underestimated provision that prohibits bad faith limitations of rights and is just starting to come into its own. Until recently, the Court’s case-law on this article made it almost impossible to invoke, given its narrow scope, accessory nature, and the sky-high burden of proof required to do so. Since the Grand Chamber revamped its approach to the provision in the 2017 Merabishvili judgment, the Court has started to find more regular violations of Article 18. But questions remain, such as how to distinguish Article 18 from the abuse of rights clause in Article 17, and how to deal with measures that have mixed legitimate and nefarious aims. This article unravels these and other questions and suggests ways to create a more coherent case-law that allows Article 18 to fulfil its intended role.