The European Convention on Human Rights in the Serbian and English Constitutional Orders: A Comparative Analysis
CONSTITUTIONAL JUSTICE IN KOSOVS AND THE REGION, Enver Hasani, Peter Paczolay, Michael Riegner, eds., Berlin: Nomos Verlag, Forthcoming
22 Pages Posted: 20 Jan 2012
Date Written: January 20, 2012
The paper observes the issue of the domestic implementation of the European Convention for Human Rights by comparison of two very different legal systems - English and Serbian. The former, firmly based on a dualist approach to international law with the strong notion of parliamentary sovereignty might seem to be burdened, on the face of it, by nationalist attitude to international obligations, legislative rigidity and disempowered courts. The latter sounds like a polar opposite. With a monistic, international-friendly approach to international law, and with the clear possibility of judicial review of the decisions of all the branches of the government, including the legislative one, the Serbian legal system appears to be more open to international human rights standards. It also seems to be more responsive in remedying the insufficiencies of domestic legislations affecting individual rights and liberties. Despite the formal shortcomings of the English system and nominal superiority of the Serbian one, the Convention, however, seems to have a much cozier life in the former than in the latter system. The paper then examines some of the extra-legal factors that might have influenced such state of affairs.
Keywords: Human Rights Law, European Convention for Human Rights, Constitutional Law, domestic application of the European Convention
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