The European Court Of Human Rights: A Constitutional Court Endangering States' Sovereignty?

• Author: Solène Guggisberg
• Pages: 98-106

[2012] COLR

98

THE EUROPEAN COURT OF HUMAN RIGHTS: A

CONSTITUTIONAL COURT ENDANGERING STATES’

SOVEREIGNTY?

Solène Guggisberg*

A INTRODUCTION

The European Court of Human Rights (ECtHR or the Court) is in a time of major changes; the

last two decades have seen a huge increase in the caseload of the Court, because of the

enlargement of the Council of Europe and of the adoption of Protocol 11. These special

circumstances, particularly the extreme success of the individual complaint procedure, have

brought to the surface some underlying issues on the functioning, the aim and the nature of

the ECtHR. Indeed the Court is potentially endangered by its obviously ever-increasing

backlog and needs to redefine its procedures and therefore its purpose. So, in this time of

change, which offers grounds for criticism but also enables potential ameliorations, it is

interesting to discuss the nature of the ECtHR and its relation to states‟ sovereignty. One

should indeed examine whether the Court is dispensing constitutional or individual justice and

how the answer to that first question interrelates with the international nature of the European

Convention on Human Rights (ECHR or the Convention) system, and more precisely, how it

affects the contracting states‟ sovereignty.

This paper claims that while both individual and constitutional justice have been

dispensed by the Court there is a trend towards constitutional justice. After highlighting the

characteristics of constitutional and individual justice (B 1), this is demonstrated by looking at

the purpose of the Convention system and at the Court‟s practice (B 2). In a second part, it is

argued that not only does constitutional justice respect sovereignty but that it can also

reinforce it. The particularity of human rights treaties regarding challenges to sovereignty will

be examined. It will then be demonstrated that constitutional justice respects states‟

sovereignty because contracting states have consented to it (C 1) and that although the margin

of appreciation of states seems to shrink, some is left to them (C 2). Finally, it will be

suggested that, against all appearances, constitutional justice is less intrusive than individual

justice and can even strengthen sovereignty (C 3).

To conclude, while acknowledging that constitutional justice respects the sovereignty

of states, one must keep in mind that it is not the only issue at stake. Legitimacy and thus the

actual efficacy of the system are not to be overlooked and they both weigh in favour of

constitutional justice.

B CONSTITUTIONAL JUSTICE v INDIVIDUAL JUSTICE

1 Main Characteristics