The Open Architecture of European Human Rights Law
| Date | 01 March 2008 |
| DOI | http://doi.org/10.1111/j.1468-2230.2008.00688.x |
| Published date | 01 March 2008 |
The Open Architecture of European Human Rights Law
Nico Krisch
n
The evolution of the European humanr ightsregime is often described as the development of an
integrated order with the European Convention of Human Rights as its governing ‘constitu-
tional instrument’. It is argued that the regime is better regarded as pluralist - characterised by a
heterarchical relationship between its constituent parts that is ultimately de¢ned politically and
not legally.The emergence and workings of thispluralist order are traced through the interaction
of the European Court of Human Rights with domestic courts in the EuropeanUnion. These
cases not only show con£icts over questions of ultimate supremacy but also signi¢cant
convergence and harmony in practice. The analysis of the factors leading to this convergence
indicates that central characteristics of pluralism ^ incrementalism and the openness of ultimate
authority ^ have contributed signi¢cantly to the generally smooth evolution of the European
human rights regime.This suggests abroader appeal of pluralist models as alternatives to consti-
tutionalism in the construction of postnational authority and law.
INTRODUCTION
When in October 2004 the German Constitutional Court, in its G˛rgˇlˇ judg-
ment, signalled limits to its loyalty to the European Court of Human Rights
(ECtHR),
1
it provoked an outcry not only among scholarly commentators but
also in the press and led Strasbourg judges to droptheir typical reserve and voice
their frustration in public.The presidentof the ECtHR and the Germanjudge on
the Court expressed seriousconcerns about the rami¢cationsof the German judg-
ment, prompting a vigorous reply by the Constitutional Court’s president, all
published prominently in the German press.
2
What the Constitutional Court
had done was to hold that domestic courts could (and should) disregard
n
Law Department, London School of Economics and Political Science. A previous version of this
paper was presented at faculty seminars at the LSE Law Department and at Princeton University’s
Woodrow Wilson School of Public and International A¡airs, and I am grateful to the participants
in these seminars as well as Aida Torres Perez, Alec Stone Sweet, Alejandro Saiz Arnaiz, Carol
Harlow, Cathryn Costello, Christian Walter, Christoph M˛llers, Jochen Frowein, Marisa Iglesias,
Neus Torbisco Casals, Wibren van der Burg and three anonymous reviewers for comments and
discussion.
1 Bundesverfassungsgericht, Judgment of 14 October 2004,2 BvR 1481/04,Entscheidungen des Bun-
desverfassungsgerichts 111, 307. An English translation is available at http://www.bverfg.de/entschei
dungen/rs20041014_2bvr148104en.html(last visited 21November 2007).
2 See ‘Im Ausland miversta
ºndlich’FrankfurterAllgemeine Zeitung 23 October 20 04, 5;‘Welches Ge-
richt hat das letzte Wort?’FrankfurterAllgemeine Zeitung10 December 2004, 4; and the interviews
with the then president of the ECtHR, Luzius Wildhaber,‘Das tut mir weh’DerSpiegel 47/2004,15
November 2004, 50; and with the president of the German constitutional court, Hans-Jˇrgen
Papier,‘Straburgi st kein oberstes Rechtsmittelgericht’FrankfurterAllgemeineZeitung 9 December
2004, 5.The strong resonance in the G erman press is re£ected in editorials by Reinhard Mˇller,
‘Daslet zteWort’FrankfurterAllgemeineZeitung 23 October20 04,1;and Heribert Prantl,‘Juristisches
R˛hren’SˇddeutscheZeitung 20 October 20 04,4.
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2008) 71 (2) 183 ^216
Strasbourg judgments insofar as they are incompatible with central elements of
the domestic legal order, legislative intent, or constitutional provisions.
3
This positionwould be unsurprising if it concerned the place of otheri nterna-
tional agreements in German law, so the strength of the reaction to it must stem
from features peculiar to the European human rights regime. It can in part be
explained by the force of the narrative the German judgment upsets.That narra-
tive had, for several decades, been one ofconstant progress: the ECtHR had lar-
gely shed its origins as an international tribunal and begun to resemble a
supranational constitutionalcourt, with an everstronger anchoring in the domes-
tic legal orders of member states and general acceptance of its authority as the
ultimate arbiter of human rights disputes in Europe. In this vein, the storyof the
Strasbourg Courthad come to be seen as part ofthe ‘constitutionalisation’of Eur-
ope: the successful implementation of a constitutional modelof politics, in which
the law lays down the ground rules of political life and enforces them through
e¡ective judicialbodies.
4
The EuropeanConvention of HumanRights (ECHR),
so it seemed, had become such a constitutional instrument, and the ECtHRwas
happy to reinforce that vision in its jurisprudence.
5
As attractive as that narrative might be, reality has always been closer to G˛r-
gˇlˇ. There is no doubt that the ECtHR has, over the almost ¢fty years of its
existence, gained remarkable authority; that its judgments enjoy high rates of
compliance; and that they are now regularly cited by national courts in many,
perhaps most member states.
6
Yet this ever-closer linkage between the national
and European levels of human rights protection has been accompanied by reser-
vations in many national legal systems, and in remarkably similar terms. As a
result, it is no longer useful to see domestic and European human rights law, in
the classical domestic/international dichotomy, as di¡erent legal orders; but they
also do not form an integrated whole, neatlyorganised accordingto rules of hier-
archyand a clear distribution of tasks.
3 For a short summary and comment on the decision, see F. Ho¡meister,‘Germany: Status of Eur-
opean Convention on Human Rights in Domestic Law’ (2006) 4 InternationalJournalof Constitu-
tionalLaw 72 2.
4 See, eg, C.Walter,‘Die Europa
ºische Menschenrechtskonvention als Konstitutionalisierungsproze’
(1999) 59 Zeitschrift fˇr ausla
ºndisches ˛¡entliches Recht undV˛lkerrecht 961;F. Ho¡meister,‘Die Euro-
pa
ºische Menschenrechtskonvention als Grundrechtsverfassung und ihre Bedeutung in Deutsch-
land’ (2001) 40 Der Staat 349;E. de Wet, ‘The Emergence of International and Regional Value
Systems as a Manifestation of the Emerging International Constitutional Order’ (2006) 19 Leiden
Journalof International Law 611; see also the discussion i n J.-F. Flauss,‘La Cour europe
Łenne des droits
de l’homme est-elle une Cour constitutionnelle?’(1998) 36 Revue francaisede droit constitutionnel 711.
Related ideas are voiced, for example, by J. A. Frowein,‘The European Convention on Human
Rights as thePublic Order of Europe’(1992)vol 1:2CollectedCoursesof theAcademyof EuropeanLaw
267; S. Greer,The European Convention on Human Rights: Achievements,Problems and Prospects (Cam-
bridge: Cambridge University Press, 2006) 165^189 (the ECtHR as a court with a‘constitutional
mission’).
5 ECtHR, Judgment of 23 March1995, LoizidouvTurkey (preliminaryobjections)at [75]; Judgmentof
30 June 2005, Bosphorus HavaYollariTur i z m vIreland at [156] (the Convention as a ‘constitutional
instrument of European public order’).
6 For a comparativestudy, see R. Blackburn and J. Polakiewicz (eds), FundamentalRights in Europe:
The European Convention on Human Rightsand its Member States,1950^2000 (Oxford: OxfordUni-
versity Press, 2001).
Open Architecture of European Human Rights Law
184 r2008 The Author. Journal Compilation r2008 The Modern Law ReviewLimited.
(2008) 71(2) 183^216
The order we see emerging insteadis, I argue, a‘pluralist’ one: one inwhich the
relationships of the constituent parts are governed notby legal rules but primarily
by politics, often judicial politics; where we ¢nd heterarchy, not hierarchy.
7
In a
pluralist order, we do not ¢nda common set of norms at the top (a Grundnormor
rule of recognition) that would allow resolution of con£icts or would at least be
the framework in which to argue about con£icts; nor do we ¢nd an agreed ulti-
mate authority to decide on such con£icts. Instead, we ¢nd di¡erent norms and
actors competing for ultimate authority; and since they lack a common legal
frame of reference, they compete, to a large extent, through politics rather than
legal argument.
8
This contrasts with a‘constitutionalist’model in which the order
as a whole is subject to a uni¢ed set of norms governing the political system ^ a
‘constitution’, whether written or not ^ in reference to which disputes about
authority are decided.
9
This does not mean there could not be di¡erent interpre-
tations of those norms by di¡erent actors ^ in classical, domestic constitutional
orderssuch di¡erent interpretations are frequent ^ but at leastthe norms on which
the argument centres are shared and unity constitutes a common regulative
ideal.
10
Such a constitutionalist model is attractive for a host ofreasons: mainly because
it seems to be the ¢nal step in establishing the ruleof lawby taming politics and
subjecting it to a more impartial, higher law; and because the common set of
norms is an important tool for realising democratic self-government in that it
helps crystallise the common aspirations and ground rules of a society.
11
Unsur-
prisingly then, many have found it desirable to transfer this model from the
nation state to European and global levels, as an analytical tool or as a norm-
ative aspiration.
12
Yet in the postnational context, such a transfer might be
7 For attempts at similar descriptions in the ECHR context,se e M.Delmas-Marty,To w a r d s a Tr u l y
Common Law: Europeas a Laboratoryfor Legal Pluralism (Cambridge: Cambridge University Press,
trans N. Norberg, 2002) (Frenched, 1994); E. Lambert, Les e¡ets des arre
Œts de la Cour europe
Łenne des
droitsde l’homme: Contribution a
'une approche pluraliste du droit europe
Łen des droitsde l’homme (Brussels:
Emile Bruylant,1999).
8 See N.W.Barber,‘Legal Pluralismand the European Union’(2006) 12 EuropeanLawJournal306; on
concepts of legal pluralism generally, J. Gri⁄ths,‘What is Legal Pluralism?’ (1986) 24 Journal of
LegalPluralismand Uno⁄cial Law 1.
9 The notion of ‘constitutionalism’can have many meanings;my use here corresponds tothe thick
sense of constitution inJ. Raz,‘On the Authority and Interpretationof Constitutions: Some Pre-
liminaries’in L. Alexander (ed), Constitutionalism: PhilosophicalFoundations (Cambridge: Cambridge
University Press,1998)152,153^154, and to the second and thirdse nse ofconstitutionalism identi-
¢ed in P. Craig,‘Constitutions, Constitutionalismand the European Union’(2001) 7 EuropeanLaw
Journ al 125,127^128. Some authors, in particular N.Walker,‘The Idea of Constitutional Pluralism’
(2002) 65 MLR 317,have sought to merge constitutionalism and pluralism, but this neglects the
particular character and distinct content of constitutionalism as a historical notion and political
ideal. For a short critique, see N. Krisch,‘Europe’s Constitutional Monstrosity’ (2005) 25 OJLS
321,32 5^327.
10 See N. Krisch,‘DieVielheit der Verfassung’in Y. Becker et al (eds), Die Europa
ºischeVerfassung ^Ver -
fassungen in Europa(Baden-Baden: NomosVerlag,20 05) 61,63^69.
11 See, eg, F.Michelman,‘Law’s Republic’ (1988) 97Yale LJ 1493;B. Ackerman,We the People: Founda-
tions (Cambridge, Mass: Harvard University Press,1991) 266; J. Habermas, Faktizita
ºt und Geltung
(Frankfurt am Main: SuhrkampVerlag,1992)109.
12 On constitutionalist discourse on the European level, see, eg,J. H. H.Weiler,‘The Reformation of
European Constitutionalism’i n id,The Constitutionof Europe (Cambridge:Cambridge University
Press,1999)221; for similar proposals onthe internationallevel, see, eg, J.Habermas,‘Hat die Kon-
Nico Krisch
185
r2008 The Author.Journal Compilation r2008 The Modern Law Review Limited.
(2008) 71(2) 183^216
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