Defining the dialogue with Strasbourg - Recent views from Germany and France

Dr. Birgit Schlütter will present one of her last projects in collaboration with MultiRights.

In the wider Europe, the impact of the case law of the European Court of Human Rights (ECtHR) on national constitutional law is an uncontested reality. Nonetheless, this influence is not uncontroversial: protests of member states against some of the most recent cases have turned the spotlight on the importance and impact of national sovereignty for national relations with the ECtHR. There is reason for concern when the legal expression of this scepticism solely focuses on the principle of subsidiarity, which was named as key during the latest Izmir, as well as the Interlaken conferences on the further reform of the Court. However, subsidiarity is only one of the factors which govern the ECtHR’s relationship with national states. Further concepts and principles impacting that relationship are, for example, Solange, comity or the preservation of constitutional identity. This paper inquires what – which principles and rules - drive the dialogue between the Court and the constitutional courts of member states. Assessing the latest case law from the German Bundesverfassungsgericht and the French Conseil Constitutionnel, the paper investigates which national approach to international law may steer the future interaction of national member states with the ECtHR. Ultimately, the paper hopes to make some general conclusions about the viability of monism, dualism and lex superior approaches to national interactions with supranational institutions like the Strasbourg Court.


Published Sep. 30, 2011 1:53 PM - Last modified Oct. 13, 2014 10:41 AM