The European Court of Human Rights as a Constitutional Court?
Festschrift to the 40th Year Anniversary of the Universität der Bundeswehr, Munich: 'To Live in World Society – To Govern in the World State', Forthcoming
8 Pages Posted: 5 Apr 2014
Date Written: March 19, 2014
The European Court of Human Rights (ECtHR) has repeatedly characterized the European Convention on Human Rights (ECHR) 'as a constitutional instrument of European public order (ordre public)'. Several authors have also suggested that the ECtHR is – or should become – more like a constitutional court. This paper discusses whether the ECtHR in practice substantively act – and should act – as part of a constitutionalized legal system, including its relationship to national constitutional organs. It is concluded that the ECtHR and national courts interact – and should interact – as part of a two-way common legal enterprise. This interaction is different from the national legal system. But it has constitutional features in the sense that the ECtHR and national constitutional organs, including national courts, have defined mutual functions in the common transnational legal protection of human rights.
Keywords: Human Rights, European Court of Human Rights, Constitutionalism, Constitutionalization, Margin of Appreciation, Pluralism
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