StoneSweet_OnTheConstitutionalisationOfTheConvention

StoneSweet_OnTheConstitutionalisationOfTheConvention - From...

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From the SelectedWorks of Alec Stone Sweet October 2009 On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court Contact Author Start Your Own SelectedWorks Notify Me of New Work Available at: http://works.bepress.com/alec_stone_sweet/33
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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 50 th Anniversary of the European Court of Human Rights. It will be published in French in October 2009. The paper is derived from the book, A Europe of Rights (OUP, 2008) and several papers available on the Selected Works site. 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. I will 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. 1 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 constitutionalism (I.A). 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 constitutionalised 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 constitutional jurisdiction. 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, a priori
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StoneSweet_OnTheConstitutionalisationOfTheConvention - From...

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