'The Rights and Freedoms of Others': The ECHR and its Peculiar Category of Conflicts between Individual Fundamental Rights

CONFLICTS BETWEEN FUNDAMENTAL RIGHTS, Eva Brems, ed., Antwerp/Oxford: Intersentia, 2008

29 Pages Posted: 21 Nov 2007 Last revised: 11 Feb 2014

See all articles by Jacco Bomhoff

Jacco Bomhoff

London School of Economics - Law Department

Abstract

Conflicts between individual fundamental rights are both pervasive and problematic in the system of the European Convention on Human Rights. This paper is an attempt to illuminate these two dimensions, as well as a plea for taking conflicts of rights more seriously within the Convention legal order.

The paper uses a comparative law perspective to demonstrate that the Convention system operates with an exceptionally broad category of 'conflicts between individual fundamental rights'. The size and location of this category are attributable, at least in part, to the Convention system's exclusive reliance on a rights-based perspective and the corresponding absence of any 'division of powers' jurisdiction for the European Court of Human Rights. This institutional set-up, unique among (quasi)-constitutional courts, coupled with the absence of a 'thick' understanding of democracy at the European level, pushes the Court towards framing a large proportion of conflicts between individual and collective interests before it as conflicts between individual fundamental rights.

Although current institutional arrangements significantly limit possibilities for the Strasbourg Court to modify its approach, the paper does propose a number of ways in which the ECHR could take conflicts of fundamental rights more seriously. These suggestions focus on situations in which framing a conflict as a clash between individual rights may be suboptimal, suscpicious, or both. The situations identified are those in which (1) individuals are opposed to the 'rights' of majorities, (2) individuals are opposed to the 'rights' of public officials, and (3) cases in which the distribution of, or access to, public resources is a central issue.

Keywords: fundamental rights, constitutional law, ECHR

Suggested Citation

Bomhoff, Jacco, 'The Rights and Freedoms of Others': The ECHR and its Peculiar Category of Conflicts between Individual Fundamental Rights. CONFLICTS BETWEEN FUNDAMENTAL RIGHTS, Eva Brems, ed., Antwerp/Oxford: Intersentia, 2008, Available at SSRN: https://ssrn.com/abstract=1031682

Jacco Bomhoff (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

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