The Open Architecture of European Human Rights Law

Abstract

The evolution of the European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its "constitutional instrument" at the top. In this article, I seek to show that this description is misguided and that the regime is better regarded as pluralist -as characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union and the United Kingdom. All these cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. I begin to identify factors that have led to this convergence and conclude that central characteristics of pluralism -incrementalism and the openness of ultimate authority -seem to have contributed to the generally smooth evolution of the European human rights regime in a significant way. This finding suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law.

Hearsay and Human Rights: Al‐Khawaja in the Grand Chamber

“…The main point is that the ECtHR has listened to criticism, and acknowledged the lack of justification for a strict sole or decisive rule. It may well be that some of the more puzzling aspects of the Grand Chamber's decision are simply the result of this process of compromise, as a hard line reiteration of the sole or decisive rule was watered down to avoid antagonising the UK at a time when there is much talk of the problems of the Human Rights Act, with the finding of a breach of Article 6 in Tahery the price paid to mollify the hard‐liners. While the Al‐Khawaja/Tahery split can certainly be read in this way, it seems to me that, compromise or not, the Grand Chamber here gets things right.…”

The End of Exceptionalism and a Strengthening of Coherence? Law and Legal Integration in the EU Post‐Brexit

“…Rather than suggesting a wholescale change in the way in which we understand the core concept and purpose of EU law, but at the same time recognizing that the single legal order is necessarily a given, legal scholars have found newer ways of characterizing the system. The terms legal order, or even legal system, are increasingly replaced by the use of terms indicating geographical or physical spaces for circulation and interaction, such as legal 'spaces' or 'architecture' (Krisch, 2008;Piris, 2012). As differentiation applies at both the institutional, constitutional level and within specific policy areas, we find an increasingly use of the language of constitutional pluralism (see in particular De Búrca and Weiler, 2011, MacCormick, 1999.…”

Absent Witnesses and the UK Supreme Court: Judicial Deference as Judicial Dialogue?

“…23 It is useful here to refer to arguments that the European human rights regime is pluralist rather than constitutionalist, with intermittent tension and synergy between domestic courts and Strasbourg reflecting judicial politics that continue to evolve. 24 According to Krisch, the House of Lords tended to adhere to European case law (more consistently than the Court of Appeal) perhaps 'to extend the reach of its judicial review powers beyond what was possible under the common law'. 25 In its first case addressing s. 2(1), however, the Supreme Court was decidedly deferential to national government, declining to utilise the Human Rights Act as a constitutional basis to interpret the CJA 2003 more restrictively than Parliament provided, or further develop common law confrontation rights.…”