The Constitutional Potential of the European Court of Human Rights
NUJS Law Review, The West Bengal National University of Juridical Sciences (Vol. 2, Fall 2012).
12 Pages Posted: 3 Nov 2012 Last revised: 4 Nov 2012
Date Written: October 31, 2012
The European Court of Human Rights (ECtHR) is widely recognized as having the features of what can effectively be called a constitutional court. But what is the proper definition of a constitution and in what way can the ECtHR be properly considered a “constitutional court”? Constitutions are considered by citizens and jurists alike to be the most profound expressions of national commitment, but to what extent does the ECtHR operate constitutionally vis-a-vis the States within its jurisdiction? This paper attempts to briefly answer these questions and elaborate upon the implications of having the constitutional atmosphere of the EU interpreted and influenced by the ECtHR. This paper also deals with the EU’s constitutional structure as States interact and submit to the constitution-like machinations of the ECtHR. The paper proceeds to investigate the ECtHR as a constitutional apparatus and examine the unique challenges to the idea of a “constitutional court”. It concludes with case studies from the United States and Scotland and finally questions what could be done to further understand the constitutional nature of the ECtHR.
Keywords: European Court of Human Rights, ECoHR, International Public Law
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