Revue trimestrielle des droits de l’homme 80 (2009).
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.
Date of Authorship for this Version
Sweet, Alec Stone, "On the Constitutionalisation of the Convention: The European Court of Human Rights as a Constitutional Court" (2009). Faculty Scholarship Series. Paper 71.