The subsidiary nature of the European Court of Human Rights, on one hand, and the fundamental role of national authorities in protecting human rights, on the other hand, were stressed in the Interlaken Declaration, adopted by member states of the Council of Europe at the High Level Conference on the Future of the European Court of Human Rights on 19 February 2010.
Objectives
The principle of subsidiarity may be implemented in different ways. The research will examine three possible approaches of national courts:
- Resistance, i.e. that national courts as far as possible protect the national legal order in their interpretation of the European Convention on Human Rights. This would mean that the European Convention, to the extent that it conflicts with national law, would be interpreted restrictively. This may be justified by an intent of national courts to protect national democratic freedom and traditions;
- Deference, i.e. that national courts as far as possible respect the European Court and its interpretations. This may be justified by the need for acknowledging the superior status of the European Court and effective international protection of human rights, and ensuring consistency in interpretation between the national and international levels;
- Constitutionality, i.e. that national courts actively take part in the development of the European Convention through their interpretation, while at the same time acknowledging the European Court as the highest court.
These different approaches could be seen as different ways of applying the principle of subsidiarity, from giving priority to the national level, giving priority to the international level, or acknowledging the different legitimate roles of the international and national levels, namely that the international and national levels in practice function in a ‘constitutional’ manner.
The project will also study how the European Court deals with practice from national courts in order to assess the ‘constitutional’ function of the legal order as a whole. The project will both have descriptive and normative elements, in that it will both examine the actual practice of national courts and the European Court, and provide guidance on how these courts should balance effective international protection of human rights while acknowledging the essential role of national courts.
Methods
The post-doctorate researcher will study three to five national jurisdictions, representative of both civil law and common law systems (to be decided), drawing inter alia on the “International Law in Domestic Courts” (ILDC) database, as well as the case law of the European Court of Human Rights.
Work plan
The three first years will be dedicated to collection of cases from the three national jurisdictions and the European Court. Writing of academic articles (approximately five) will commence already in the second year of the project. The last year will also consist in dissemination and organizing of the final conference. The Principal Investigator will allocate time to supervise the post-doctorate researcher, be author or co-author of academic publications and, with the post-doctorate researcher, be responsible
for the final conference.
Planned outputs
The post-doctorate researcher and the principal Investigator will publish academic articles. The articles will give a thorough examination of different styles of interpretation by the national courts, and how the European Court takes account of jurisprudence from such courts. It will be discussed to what extent the national and international judiciaries in practice functions as one consistent ‘constitutional’ legal system, or if conflicts and inconsistencies prevail. A final conference (in Norway or as part of a joint project conference) will be organized for academic exchange and dissemination.
Financing
The project is financed by the Norwegian Research Council (NRC) / European Science Foundation (ECRP).