On the Constitutionalisation of the Convention:
The European Court of Human Rights as a Constitutional Court
Alec Stone Sweet
[Note: This paper was commission by the the
Revue trimestrielle des droits de l’homme
on the occasion of the
Anniversary of the European Court of Human Rights.
It will be published in French in October 2009.
paper is derived from the book,
A Europe of Rights
(OUP, 2008) and several papers available on the Selected
Due to space constraints references were kept to a bare minimum.
It may be of interest to those
intrigued by the debate on the constitutionalization of international regimes and, in particular, the ECHR.
post the final French text when a final copy is available.]
In this essay, I seek to make the best argument for the claim that the European Court
of Human Rights is a constitutional court.
The scope of the Court’s authority is comparable
to that of national constitutional and supreme courts; and it is, today well positioned to
exercise decisive influence on the development of a rights-based, pan-European
Further, judges in Strasbourg confront the same kinds of problems
that their counterparts on national constitutional courts do; and they use similar techniques
and methodologies to address these problems (I.B).
Finally, I will argue that the European
Convention of Human Rights [ECHR] has been
by the combined effects of
the entry into force of Protocol No. 11, and the incorporation of the Convention into national
legal orders (II.A).
Today, the Court’s basic constitutional task – its existential problem – is
to manage the complex system of constitutional pluralism that has emerged.
At the same
time, the constitutionalisation of the Convention exacerbates the pluralism that already exists
in many national legal orders (II.B).
Far from being an oxymoron, “constitutional pluralism”
describes a normal state of affairs in Europe.
I recognize that my position is a distinctly minority one, likely to be rejected by many
readers of this volume.
The Contracting Parties, after all, called the ECHR a “Convention,”
not a “Constitution”; and they have never referred to the Court as a
Moreover, in contrast to the classic Kelsenian judge, the Strasbourg Court does
not possess the authority to annul legal acts.
The Convention’s legal system provides,
instead, for “individual justice”: the review of national acts by a transnational court, and the
awarding of damages to individuals whose rights under the Convention have been infringed
by one of the Contracting Parties.
In short, there are strong reasons to deny,