The democratic peace and the cosmopolitan constitution

Over the past 25 years, political scientists have generated a massive research project designed to test Kant’s model. Although scholars continue to refine methods and debate findings, the ‘democratic peace’ has been shown to be remarkably robust, and the independent causal influence of the three variables (liberal democracy, international organization, and economic interdependence) on the outcome (the absence of war between liberal states) has been impressively demonstrated (O’Neal, Russett, and Berbaum 2003).

Peace among nations was not Kant’s only priority. Without a stable peace, achieving cosmopolitan Right – a rights-based, ‘international rule of law’ (Huntley Reference Huntley1996: 49) – would not be possible. Kant defined Right as ‘the sum of the conditions under which the choice of one can be united with the choice of the other in accordance with a universal law of freedom.’Footnote ⁷ These conditions are ‘constitutional’ in that they ground the legitimacy of all political arrangements, including treaty-based organizations, in a rights-based conception of the rule of law:Footnote ⁸

The cosmopolitan constitution is a set of ‘normative and juridical principles of … cosmopolitan Right’ (Brown Reference Brown2006: 674). We can understand these principles, once codified as positive law, as a code for universal justice that states voluntarily establish to realize Right.

Kant did not outline in any detail how a system of international public Right would operate, and he had little to say about courts, judicial review, or even of rights in the contemporary sense. We can nonetheless derive from Kant certain core features of a cosmopolitan legal system that are relevant to the ECHR. Most important for present purposes, Kant emphasized that, because individuals must live together in a limited space with finite resources, freedom of choice will inevitably lead to social conflict; while conflict can be debilitating, it also provides opportunities for generating stable, legitimate governance.Footnote ¹⁰ Kant conceived of the domain of justice, and of the rightful exercise of public authority more generally, as those arrangements whose purpose is to determine the acceptable reasons for using state power to restrict an individual’s freedom in order to guarantee the freedom of all.Footnote ¹¹ It follows that, with few exceptions (for example, the prohibition of slavery; the right of access to justice) rights are not absolute. Rather, most rights will be subject to limitation when necessary to achieve significant public purposes.

The CLO’s primary mission is to render justice in this sense. Most of the rights that comprise the international bill of rights, the ECHR, and the charters of most national constitutions are, in fact, ‘qualified’ by limitation clauses; indeed, the qualification comprises part of the norm itself. The task of the European Court is to evaluate the reasons proffered by states to justify infringements of an individual’s Convention rights. The techniques which the Court has developed to do so have been crucial to the regime’s viability (third part below).

Transformation

Europe has experienced a deep, structural transformation since the end of World War II. The steady expansion of a zone of ‘liberal peace’ enabled the CLO to materialize. In this variation of Kant’s model, fulfilling the three definitive articles constitutes a precondition for the building of arrangements to achieve cosmopolitan Right.

The institutionalization of this transformation broadly conforms to the dictates of Kant’s model. Under NATO, Western Europe became a security community, in alliance with the U.S. and Canada. NATO membership expanded from 10 members in 1949, to 28 states today; 22 more European states are ‘partner countries.’ Six states established the European Coal and Steel Community (1952) and then the European Community (1958), organizations which grounded the construction of market federalism, a supranational regulatory system, and a corpus of fundamental rights. Today, the European Union [EU] (1993) trades more with the rest of the world than does any other member of the World Trade Organization; and each of its 27 member states exports more to markets within the EU than to all global markets combined. The Council of Europe, founded by ten states in 1949, completed negotiations of the ECHR in 1950, and the Convention entered into force in 1953. With Protocol No. 11 (entry into force on November 1, 1998), all of the High Contracting Parties accepted the right of individuals to petition the Strasbourg Court, as well as the compulsory jurisdiction of the Court to adjudicate these claims. The Convention system is truly pan-European, covering 47 states with a population exceeding 800 million people.

At the national level, the change that matters most concerns the status of fundamental rights. Prior to World War II, only a handful of high courts in the world had any experience with constitutional judicial review: the authority to invalidate statutes and other acts of public authority that conflict with constitutional norms. After World War II, Western Europe became the epicenter of a ‘new constitutionalism’ (Stone Sweet Reference Stone Sweet and Caramani2010a) which, with successive waves of democratization, spread across the Continent. The basic formula – an entrenched, written constitution; a charter of rights; and a mode of constitutional judicial review (typically a specialized constitutional court) to protect those rights – was replicated in every new European constitution adopted since 1949.Footnote ¹²

Kant’s model is dynamic: important outcomes – including peace, economic interdependence, and arrangements for rendering cosmopolitan justice – can be reached only through learning and adaptation (Cederman Reference Cederman2001). The momentous changes just discussed interact with one another in complex ways, one result of which is an increasingly structured interface between national and international politics. As rights-based constitutionalism migrated to states in Southern Europe, and then across Central and Eastern Europe, membership in NATO, the EU, and the ECHR expanded. As the ECHR evolved into a CLO, the impact of the Convention, too, was registered on multiple levels at once, including the activities of individuals, the decision making of governmental organs, and the content and dispositions of national and international law.

Concepts

While framed in Kantian terms, my account of the CLO in Europe is meant to stand on its own, that is, it does not depend upon its derivability from, or fidelity to, Kant. Most important, I argue that constitutional pluralism and rights cosmopolitanism have been co-constitutive of one another in ways that can be charted and assessed. Before turning to the empirics, further elaboration of concepts is in order.

By rights cosmopolitanism, I mean the recognition of a legal duty to provide justice under the cosmopolitan constitution. A CLO is a legal system in which all public officials bear an obligation to respect the fundamental rights of every person within their jurisdiction. For courts, this obligation entails rendering justice in the Kantian sense just discussed. The ECHR occupies a central strategic position in the CLO, given that individuals have an unfettered right to petition the Court once national remedies have been exhausted.

Constitutional pluralism is a structural characteristic of a legal system. Within the domestic constitutional order, the term refers to a situation in which two or more sources of judicially-enforceable rights co-exist. In many national legal systems, three such sources – national constitutional rights, EU rights, and the ECHR – overlap. Individuals have a choice of which source to plead, and judges have a choice of which right to enforce. These choices have consequences, as when national judges prefer to apply European rights, rather than their own constitution law, as a means of raising standards of protection.

The term, constitutional pluralism, also refers to systemic features of the CLO. The fact that ECHR maps onto rights found in national systems undergirds the notion of a multi-level constitutionalism (Kumm Reference Kumm, Dunhoff and Trachtman2009: 303–10; Petersmann Reference Petersmann, Joerges and Petersmann2006): no act taken by any public authority, at any level of governance, can be considered lawful if it violates a fundamental right. This notion of multi-level constitutionalism, too, can be tied to Kant.Footnote ¹³ The structure of authority within this presupposed constitution is pluralistic, in that the system is comprised of discrete hierarchies, national and Treaty-based, each of which has a claim to autonomy and legitimacy. In Europe today, judges intensively interact with one another across jurisdictional boundaries with reference to questions of rights adjudication that they collectively confront.

This paper examines the construction of a pluralistic, constitutional system, a momentous outcome given legacies of the past. In Europe, traditional models of the juridical state are grounded not in notions of legal pluralism, but sovereignty.Footnote ¹⁴ These models depict the legal system as hierarchically organized, with one organ positioned to defend the integrity of the hierarchy of norms that constitutes it. This organ is considered to be the repository of centralized sovereignty, to the extent that it possesses a monopoly on the authority to resolve certain legal questions. In the archetypal cases, a constitutional court (under rights-based constitutionalism) or a parliament (under a regime of legislative sovereignty) are considered to possess the ultimate authority to resolve issues involving the validity of, or conflict among, legal norms within the system.

A CLO is a legal system in which fundamental rights are enforced by a ‘decentralized sovereign’ a concept that I adapt from Smith (Reference Smith2008). The regime is not hierarchically constructed with one jurisdiction positioned to render a ‘final word’ on questions of legal validity at each level of governance. From an internal perspective given by the Convention, the European Court is the authoritative interpreter of Convention rights. The Court, however, does not possess the authority to invalidate national measures that conflict with the Convention. If and how the Court’s rulings are ‘implemented’ in the national legal order depends entirely on the decision making of national officials under national rules. What makes the system ‘constitutional’ is an overarching normative structure: the code of rights that officials are under a legal duty to enforce; and a set of shared techniques that judges, in particular, have developed to adjudicate rights. In the decentralized model, as Smith (Reference Smith2008: 43) puts it, ‘there is no single hierarchy that encompasses the entire political order, but instead a series of related hierarchies.’ In Europe, states have pooled and then distributed sovereignty in such a way as to create a layered set of ‘nodes’ of judicial authority to protect rights. Each of these nodes is autonomous; yet the cosmopolitan order exists only in so far as national judges credit their roles in a common project.

A system of decentralized sovereigntyFootnote ¹⁵ suffers from two generic coordination problems that centralized sovereignty was meant to resolve (Smith Reference Smith2008: 427–9). The first problem concerns the source of systemic order, which is resolved by the pre-supposed constitution (Gardbaum Reference Gardbaum2008): the overarching framework of fundamental rights that underpins cosmopolitan constitutionalism. The second problem is one of overlapping competences: each high court is under a duty to resolve disputes within the same domain, that of the cosmopolitan constitution. In the CLO, overlapping competences count as a good in so far as individuals (a) have multiple points of access to the decentralized sovereign, and (b) healthy competition among nodes of authority serves to upgrade, rather than reduce, a collective commitment to rights protection.

The supremacy of EU law and judicial review

Constitutional pluralism first emerged in Europe with the consolidation of the doctrines of the direct effect and supremacy of EU law, announced by the European Court of Justice (ECJ) in the 1960s. As a massive literature has demonstrated (Stone Sweet Reference Stone Sweet2010b), acceptance of these doctrines by national courts integrated the EU and national systems in complex ways, ‘constitutionalizing’ the regime. The EC Treaty originally contained no supremacy clause, and the member states did not provide for the direct effect of Treaty provisions or directives. The doctrine of direct effect entitles individuals to plead entitlements found in the treaties and in directives (EU statutes that member states are obliged to ‘transpose’ into national law) before national courts. The doctrine of supremacy requires that national judges resolve any conflict between domestic law and EU law with reference, and deference, to the latter. The ECJ justified these moves on the grounds that the Treaty constituted an ‘autonomous’ legal order conferring rights onto individuals (Stein Reference Stein1981).

Supremacy challenged the prohibition of judicial review in that it required judges to refuse to apply any norm, including statutory provisions, found to be in conflict with EU law. By 1989, every high court in the EU had accepted supremacy, and the courts of new member states quickly joined them. The result: all judges acquired the power of judicial review of statute, albeit only in areas governed by EU law, authority otherwise denied to most courts under national constitutional law. In systems in which a constitutional court defends the primacy of the constitution and rights, the ECJ’s case law fatally undermined the presumed monopoly of the constitutional judge to determine the conditions under which the ordinary (non-constitutional) could refuse to apply relevant statute.Footnote ¹⁸

The politics of supremacy involved significant inter-judicial conflict (Alter Reference Alter2001; Slaughter, Stone Sweet, and Weiler Reference Slaughter, Stone Sweet and Weiler1998). The ECJ had placed no limits on the doctrine’s scope: the most banal provision of an EU directive trumps every conflicting statute, as well as the most sacred provisions of the constitution. Under a regime of supremacy, each extension of EU law would potentially create a gap in national rights protection. In 1974, the German Federal Constitutional Court (GFCC) reacted, declaring that it would review the implementation of directly effective EU law, upon referrals from the ordinary courts and individuals, ‘so long as the integration process has not progressed so far that Community law also possesses a catalogue of rights ... of settled validity, which is adequate in comparison with a catalogue of fundamental rights contained in the [German] constitution.’Footnote ¹⁹ In response, the ECJ actively developed such a catalogue, in the guise of (unwritten, judge-made) general principles inspired by the ECHR and ‘the constitutional traditions common to the member states.’ In 1986, the GFCC withdrew its objections ‘so long as the [EU], and in particular the ECJ, generally ensures an effective protection of fundamental rights.’Footnote ²⁰ These ‘dialogues’ and others that followed, did not destroy supremacy; rather, they served to upgrade standards of protection and the authority of courts at both the national and EU levels of governance.

While it may be argued that the supremacy doctrine constituted a sovereignty claim on the part of the ECJ, no national constitutional court has accepted supremacy as the ECJ understands it. The ECJ, in effect, holds that all national judges are agents of the EU legal order, not the national order, whenever they act in domains that fall within the scope of EU law. The ECJ further asserts that it alone possesses the ultimate authority to determine the compatibility of EU law with fundamental rights.Footnote ²¹ National constitutional courts assert that EU law – including the doctrine of supremacy – enters into national law through their own constitution, and does not deprive them of their own ‘final word’ on the constitutionality of EU acts. This ‘jurisprudence of constitutional conflict’ (Kumm Reference Kumm2005) is a manifestation, probably permanent, of the pluralistic structure of EU law.

On the ground, most ordinary courts, including supreme courts, routinely behave as faithful agents of the EU order when they adjudicate EU law.Footnote ²² Some go further, overtly leveraging the ECJ in order to expand their own authority and to subvert that of the domestic constitutional order. In the area of workplace discrimination, for example, the German labor courts successfully engaged the ECJ in a joint effort to raise national standards of rights protection. The GFCC, which had chosen not to aggressively confront discrimination based on sex and age, lost these skirmishes and was forced to adapt, along with every other court in the EU (Stone Sweet and Stranz Reference Stone Sweet and Stranz2012). Today, across Europe, EU fundamental rights are a more important source of non-discrimination law than are national constitutions.

Although elected officials have at times sought to constrain the courts, these efforts failed. In the end, governments too adapted. With the Maastricht Treaty on European Union (1993), the member states revised the Treaty of Rome, echoing the Court’s seminal case law: ‘the Union shall respect fundamental rights as guaranteed by the European Convention on Human Rights ... and as they result from the constitutional traditions common to the member states as general principles of Community law.’ In 2009, the member states promulgated a Charter of Rights and accepted for the first time the basics of the supremacy doctrine.Footnote ²³ As part of this reform, the EU began formal negotiations to accede to the ECHR in 2011. Accession will further strengthen the ECHR and its Court, adding another layer of pluralism to EU law, and formally integrating the EU’s multi-level structure into the CLO.

The domestification of the Convention

In 1950, when the ECHR was signed, Ireland was the only member of the Council of Europe with any meaningful experience with rights review. The constitutions of Belgium, France, Luxembourg, The Netherlands, and the UK did not include a charter of rights and/or prohibited the judicial review of statutes. Norway’s constitution (1814) contained a handful of rights and permitted judicial review, but few if any important laws had ever been found to have violated these rights. The German and the Italian constitutional courts were still being designed. Not surprisingly, a majority of states rejected proposals to grant individuals a right of petition, and to accept the compulsory jurisdiction of the European Court (which began operation only in 1959). With Protocol No. 11 (1998), states embraced a robust legal regime. Two factors were crucial. First, the development of EU law gave national officials, including judges, a chance to adjust to new forms of judicial power under constitutional pluralism. By the end of the 1980s, every high court in the EU had accepted supremacy, and judicial review of statute under the supremacy doctrine had become routine. Second, the Soviet bloc collapsed. In the 1990s, with constitutional reconstruction in full swing, the EU and the Council of Europe offered admission to post-Communist states on the basis of certain conditions, including a commitment to rights protection. Locking them into the ECHR, and placing them under the supervision of its Court, was an obvious means of securing that commitment.

Protocol No. 11 confers upon the Court compulsory jurisdiction over individual petitions that claim a violation of Convention rights, after exhausting national remedies. If the Court finds a violation, it may award monetary damages. Unlike a national constitutional court, the Court has no authority to invalidate a national norm that conflicts with the Convention. In the 1970s, the regime received only 163 individual petitions, rising to 455 in the 1980s. Under Protocol No. 11, the number of petitions exploded. In 1999, the Registry of the Court received 8,400 complaints, a figure that has increased every year thereafter. In 2010, the Court registered 61,300 applications. Although some 96% of all petitions will be ruled inadmissible for one reason or another, the Court is overloaded. The annual rate of judgments on the merits shows a similar trend. Through 1982, the Court had issued, in its history, only 61 full rulings pursuant to applications by individuals. In 1999, it rendered 250 judgments; 1,200 in 2005; and 2,607 in 2010.Footnote ²⁴ Under Protocol No. 11, the Strasbourg Court is the most active rights-protecting court in the world.

The CLO is a product of Protocol No. 11 and the incorporation of the ECHR into domestic legal orders. As Appendix 1 documents, domestification of the Convention proceeded via different routes: express constitutional provision (Austria, many post-Communist states); judicial interpretation of constitutional provisions related to treaty law generally (most states in Western Europe); or special statutes (UK, Ireland, and Scandinavian states). With incorporation, all national courts in the system are capable of enforcing the Convention: individuals can plead the ECHR at national bar against any act of public authority; judges are under a duty to identify statutes that conflict with Convention rights, and to interpret statutes in lights of the ECHR to avoid conflicts whenever possible; and virtually all courts may refuse to apply statutes that conflict with Convention rights, with the notable exception of those in the UK and Ireland.

Incorporation is an inherently constitutional process: it subverted centralized sovereignty at the national level, while provoking dynamics of systemic construction at the transnational level. The Convention quickly developed into a ‘shadow’ or ‘surrogate’ constitution (Keller and Stone Sweet Reference Keller and Stone Sweet2008) in every state that did not possess its own judicially-enforceable charter of rights (including original signatories, Belgium, France, The Netherlands, Switzerland, and the UK). In the 1990s, Finland, Norway, and Sweden enacted new Bills of Rights, closely modeled on (and invoking) the ECHR, in order to fill gaps in their own constitutions.

In those states that possess, at least on paper, relatively complete systems of constitutional justice, incorporation provides supplementary protection. We find this situation in Germany, Greece, Ireland, Italy, Portugal, Spain, Turkey, and in the post-Communist states. The Spanish Constitutional Tribunal, for example, enforces the ECHR as quasi-constitutional norms (Candela Soriano Reference Candela Soriano, Keller and Stone Sweet2008). The Tribunal will strike down statutes that violate the Convention as per se unconstitutional; it interprets Spanish constitutional rights in light of the ECHR, wherever possible; and it has ordered the ordinary courts to abide by the Strasbourg Court’s jurisprudence as a matter of constitutional obligation, including case law generated by litigation not involving Spain. If the judiciary ignores the Court’s jurisprudence, individuals can appeal directly to the Tribunal for redress. Nonetheless, the Tribunal insists that in the event of an irreconcilable conflict between the ECHR and the Spanish Constitution, the latter will prevail – a common position among constitutional courts.Footnote ²⁵ In many post-Communist states, as well, constitutional judges invoke the Strasbourg Court’s jurisprudence as authority, in order to enhance the status of fundamental rights – and hence their own positions – in the domestic context (Hammer and Emmert Reference Hammer and Emmert2011).

Strikingly, some states give the Convention constitutional rank (e.g., Albania, Austria, Slovenia); and, in The Netherlands, the ECHR enjoys supra-constitutional status. In Belgium, the Constitutional Court has determined that the ECHR possesses supra-legislative but infra-constitutional rank, while the Supreme Court holds that the ECHR possesses supra-constitutional status, thereby enhancing its autonomy vis-à-vis the Constitutional Court.

One could continue in this vein, but the basic point has been made. The incorporation of the ECHR generated constitutional pluralism and inter-judicial competition within the national order;Footnote ²⁶ it destroyed doctrines that underpinned centralized sovereignty (e.g., legislative supremacy, the monopoly of constitutional courts over the domain of rights protection); and it enhanced judicial power with respect to legislative and executive power.

Transformation

Constitutional pluralism expands the discretionary authority of courts. Many judges will now refuse to apply law that conflicts with the Convention; at the same time, they are rapidly abandoning traditional methods of statutory interpretation. Instead of seeking to discern legislative intent, judges increasingly favor the purposive construction of statutes in light of fundamental rights jurisprudence. In systems in which multiple, functionally-differentiated, high courts co-exist (the majority of states), pluralism means that the supreme courts of ordinary jurisdiction may assume the mantle of de facto constitutional courts whenever they review the Conventionality of statutes. France, which for two centuries famously embraced and propagated the dogmas of the General Will (legislative sovereignty and the prohibition of judicial review), is now a robust example of pluralism.Footnote ²⁷ From the point of view of the rights claimant, the Supreme Civil Court (Cour de Cassation) and the Council of State (the supreme administrative court) function as the ‘real’ constitutional courts; and litigants and judges treat the Convention as the ‘real’ charter of rights. The outcome is dictated by the fact that individuals have no direct access to the Constitutional Council;Footnote ²⁸ and it is the European Court, not the Constitutional Council, that supervises the rights-protecting activities of the civil and administrative courts. Today, three autonomous high courts protect fundamental rights on an ongoing basis; and there is no formal means of coordinating rights doctrine, or of resolving conflicts, among these courts. Without revising the constitution or exiting the ECHR, French officials are now locked into a pluralist system of rights protection.

Some of the most powerful states in Western Europe have had the greatest difficulty incorporating the ECHR to permit judges to enforce it against statute. In legal terms, the structural problem concerns the fact that in so-called ‘dualist’ systems – including original signatories, Germany, Ireland, Italy, Sweden, Norway, and the UK – constitutions confer upon treaty law the same rank as statute. In such systems, conflicts between statutes and treaty provisions are expected to be resolved according to the rule, lex posterior derogat legi priori. The rule is anathema to a CLO, since legislation adopted after the transposition of the ECHR into national law would normally be immune from review under the Convention. What is critical for the emergence of the CLO is that, in these states, the rule has been relaxed or overridden altogether.

In Italy, at least until the late 1960s, ‘Italian courts refused to apply the Convention considering its provisions to be merely programmatic’ (Candela Soriano Reference Candela Soriano, Keller and Stone Sweet2008: 405). In the past decade, courts incorporated the Convention, destroying the lex posterior rule and producing a pluralist order. In 2004, the Supreme Court (Cassazione) began treating the Convention as directly applicable, while in 2007, the Italian Constitutional Court (ICC) struck down a statute (concerning expropriation) as unconstitutional on the grounds that it violated property rights under the Convention (Candela Soriano Reference Candela Soriano, Keller and Stone Sweet2008: 405–6). In its decision, the ICC held that Italian judges are required to interpret national law in light of the ECHR and, where a conflict is unavoidable, to refer the matter to the ICC. Some judges have chosen to ignore this jurisprudence. In 2008, for example, a court of appeal decided on its own authority to refuse to apply a controlling statute on grounds that it was incompatible with the Convention (reported in Andenæs and Bjørge Reference Bjørge2011: 37–8). The situation has given rise to a fierce debate: does the ECHR enjoy supra-legislative but infra-constitutional rank (the ICC’s position) or constitutional status (the position of some civil courts and scholars)? This is yet another example of constitutional pluralism in action.

In Germany, overcoming the lex posterior rule has been tortuous (Lambert Abdelgawad and Weber Reference Lambert Abdelgawad, Weber, Keller and Stone Sweet2008). Not until 1987 did the GFCC directly confront the problem, holding that German statutes, regardless of their date of adoption, must be ‘interpreted and applied in harmony’ with the Convention.Footnote ²⁹ In its Görgülü decision (2005),Footnote ³⁰ the GFCC repudiated the ‘traditional theory’ according to which the Strasbourg’s Court’s judgments did not bind the domestic organs of government, including the courts (Hoffmeister Reference Hoffmeister2006: 728–9). The ruling establishes a strong presumption that judges are to apply the Court’s jurisprudence when it is on point, except in ‘exceptional’ circumstances, namely, when ‘it is the only way to avoid a violation of the fundamental principles contained in the Constitution.’Footnote ³¹ As important, the GFCC’s ruling expanded the constitutional complaint procedure: individuals can now challenge (as a violation of their constitutional rights) judicial rulings that ignore or fail to properly take into account the European Court’s case law. While Görgülü significantly bolstered the status of the ECHR within the domestic order, the GFCC also noted that it would settle any conflict between the Basic Law and the ECHR in terms of the former.

In 2011, the GFCC declared that the ECHR and the European Court’s case law comprise interpretive ‘aids for the determination of the contents and scope of the fundamental rights and of rule-of-law principles enshrined in the Basic Law.’ Like Görgülü, the GFCC’s Preventive Detention rulingFootnote ³² ended a convoluted saga involving a direct conflict between the German courts and the European Court. In 2009, in M v. Germany, the Strasbourg Court had held that German law allowing the further detention of convicted criminals after they had served their prison sentences violated the ECHR. The GFCC had upheld the constitutionality of the relevant statute in 2004, in so far as such detention was deemed necessary to protect public security. When the GFCC appeared reluctant to change its position following the M judgment, the European Court issued a series of rulings finding the same violation. In Prevention Detention, the GFCC overturned its 2004 ruling, on the grounds that the Strasbourg’s court’s case law had constituted a significant ‘change in the legal situation.’ The Court then went on to ground the Basic Law’s ‘openness’ to the Convention in Article 1.2 of the Basic Law (which recognizes human rights as foundational principles). As a result, all organs of the state are under a duty ‘not only to take into account’ the ECHR in their decisions, but ‘to avoid conflict’ between it and national law. ‘The openness of the Basic Law’ the GFCC stated, ‘expresses an understanding of sovereignty that not only does not oppose international and supranational integration, it presupposes and expects [integration].’

By formally recognizing the overlapping nature of fundamental rights in Europe, the GFCC has taken a cosmopolitan position. In Görgülü, the GFCC had already declared that its own rights protecting role is exercised ‘indirectly in the service’ of the Convention, an engagement that both protects Germany from findings of violations and ‘contributes to promoting a joint European development of fundamental rights.’Footnote ³³ In Preventive Detention, the GFCC acknowledged a dialogic relationship with the Strasbourg Court, without abandoning its position on the primacy of the Basic Law: ‘The fact that the German constitution has the final word is not incompatible with an international and European dialogue between courts, rather it [comprises the dialogue’s] normative foundation.’Footnote ³⁴ In June 2011, two months after Preventive Detention, the European Court responded favorably, finding no violation in a related case, Mork v. Germany (2011). The Court noted: ‘In its judgment, the GFCC stressed that the fact that the Constitution stood above the Convention in the domestic hierarchy of norms was not an obstacle to … dialogue between the courts’ and that ‘in its reasoning, [the GFCC] relied on the interpretation … of the Convention made by this Court in its judgment in the case of M. v. Germany.’Footnote ³⁵ The outcome illustrates one basic mechanism – dialogue among autonomous courts – through which decentralized sovereignty can increase the effectiveness of the ECHR.

In two states – Ireland and the UK – the lex posterior rule has also been relaxed, although no judge is authorized to set aside legislation conflicting with the Convention (Besson Reference Besson, Keller and Stone Sweet2008). Pursuant to the ECHR Act (2003), Irish officials are under a duty to respect and enforce the Convention, and individuals can plead it against all acts of public authority, except those of Parliament and the courts. Under the UK Human Rights Act (2000), individuals may challenge all acts, including Parliamentary legislation; if a Parliamentary statute is found to be incompatible with the ECHR, the high courts are obligated to issue a ruling of incompatibility – but they may not set aside the offending legislative provisions. Declarations of incompatibility are addressed to the Parliament, which must indicate what remedial legislation, if any, will be proposed. In Ireland, the high courts may also issue rulings of incompatibility, although Parliament is not obliged to respond to them.Footnote ³⁶ In Norway and Sweden, which incorporated the ECHR through human rights statutes in the 1990s, the courts must give primacy to the Convention when in a conflict with legislation (Wiklund 2008). In the past decade, Norwegian courts in particular have positioned themselves to become active participants in the development of Convention rights (Andenæs and Bjørge Reference Bjørge2011: 15–17).

While the dynamics of incorporation are heavily mediated by constitutional provisions and doctrine, important strategic interests have been catalysts. In the 1990s, incorporation constituted a formal means for post-Communist states to signal their commitment to the massive institutional reforms being demanded by Western states. As a growing scholarly literature has shown, the ECHR has played a crucial role in democratic transitions after 1989 (Buyse and Hamilton Reference Buyse, Hamilton, Buyse and Hamilton2011; Hammert and Emmer Reference Hammer and Emmert2011). New bills of rights were modeled on the ECHR, with an eye towards future membership in the EU and the Council of Europe; and some states even signed the ECHR prior to ratifying new constitutions (including Albania, Armenia, Azerbaijan, Georgia, Poland, Slovakia, and Ukraine). For the core states of Western Europe, folding the post-Communist states into the ECHR also fulfilled important strategic interests. Protocol No. 11 reconstructed the regime, making it an extraordinarily efficient mechanism for monitoring the functioning of post-Communist states. For Western states, the cost of Protocol No. 11 is enhanced supervision of their own rights-regarding activities, a cost they have thus far been willing to pay.

Beyond minimalism

The Court routinely generates new rights and expands the scope of existing ones, placing even powerful states out of compliance with the Convention. This outcome has not influenced the philosophical discourse on rights, which remains dominated by minimalist precepts, and there are good reasons for wonderment. Most of the original signatories of the Convention assumed that the treaty enshrined minimalism, thereby affording substantial latitude in how states would balance public interests and rights (Nichol Reference Nichol2005). One might also suppose that a transnational court would have weaker political legitimacy in comparison with national courts. After all, the typical national judge is embedded in a liberal democratic order, and s/he is a native of the legal system in which the rights conflict has taken place. The transnational judge’s gaze, in contrast, is an alien presence. Why has this situation not led to a jurisprudence of rights minimalism?

The answer lies in how decentralized sovereignty operates. Three factors deserve emphasis. First, the Court expends great resources to convince its audience that it fully understands the richness and particularity of the dispute, as well as variation in the relevant national law across the regime. In its rulings, the Court carefully traces the process through which individuals exhausted remedies, and it dwells on the arguments briefed by the defendant state and others filing as amici. Findings of violation may not convince states, but it is not plausible to argue that the Court has ignored domestic law and context. The practice also helps the Court provide guidance on how violating states should change their laws, which it now does routinely when the source of a violation is a general legal norm or practice (Sadurski Reference Sadurski2009).

Second, the Court has developed a doctrinal framework – proportionality analysis (PA) – to adjudicate virtually all Convention rights, and it insists that all national courts use it as well. PA is tailor-made for the adjudication of qualified rights in a pluralist setting, and it is the crucial mechanism of coordination in the cosmopolitan order (Kumm Reference Kumm2004; Stone Sweet and Mathews Reference Stone Sweet and Mathews2008). In the standard sequence, once a judge determines that a right is in play, s/he then verifies (a) that the measure was properly designed to achieve a state purpose (means are rationally related to legitimate ends), and (b) that the measure does not infringe more on the right than is necessary to achieve objectives (a test for least-restrictive alternatives). Even a law that passes the first two prongs of the test may nonetheless fail a third phase of PA: balancing in the strict sense. In the balancing phase, the judge weighs the cost to the right claimant against the benefits of the measure in light of the facts. The European Court typically balances within necessity analysis, collapsing the second and third stages. Thus, how any qualified right is actually enforced will always be contingent upon local law and context, while the state that would infringe a right bears the burden of justifying the necessity of the means chosen. What is common across the national systems that comprise the CLO is not a list of norms defined in a lowest-common denominator manner, but a mode of argumentation, and justification: the proportionality framework.

The Court uses PA, in part, to determine how much discretion – the ‘margin of appreciation’ in the jargon – states should have in infringing a right for public purposes. In practice, the Court combines PA with a simple comparative method for determining when the scope of a Convention right has expanded. Typically, the Court will raise the standard of protection in a given domain of law when a sufficient number of states have withdrawn public interest justifications for restricting the right. The margin of appreciation thus shrinks as consensus on higher standards of rights protection emerges within the regime, shifting the balance in favor of future applicants. The move will always put some states out of compliance. Nonetheless, the Court can claim that there is an external, ‘objective’ means of determining the weights to be given to the values in conflict, and the Court’s supporters can usually assert that the Court’s bias is majoritarian, transnational, and pro-rights. A state that chooses not to comply is left to defend a lower standard of rights protection, on idiosyncratic or nationalistic grounds. Although states may balk when it comes to implementing controversial judgments, they eventually comply in the vast majority of cases.

The saga of Smith and Grady v. UK (1999)Footnote ³⁸ illustrates these dynamics. The case involved a lesbian air force nurse and a gay naval officer who were dismissed pursuant to policy prohibiting homosexuals from serving in the armed forces. Each had been highly recommended for promotion prior to being ‘outed’ by anonymous sources. Smith and Grady sued, pleading Article 8 ECHR (privacy). Although their claims were rejected, presiding judges indicated that the plaintiffs would have prevailed but for the fact that UK judges were bound by the ‘Wednesbury (Un)Reasonableness’ test. A deference doctrine derived from the prohibition of judicial review, the test restricts courts from reviewing the merits of a public policy decision unless plaintiffs can show that no rational person would have taken it. (In its ruling, the Strasbourg Court characterized the test as the rights-claimant’s burden ‘to show that the policy-maker had ‘taken leave of his senses.’). Clearly uncomfortable with the outcome, the Court of Appeal urged the claimants to go to Strasbourg.

The Court found that the dismissals violated the applicants’ privacy rights, and ordered the UK to pay them £59,000 and £78,000 respectively (the justice function). The Court also took the opportunity to declare the reasonableness test unlawful under the Convention, holding that failure of the courts to use PA had violated the applicants’ right to an effective judicial remedy (Art. 13 ECHR). In this and subsequent cases, the Court required national judges to abandon such deference doctrines. PA is an analytic procedure that requires judges to evaluate the merits of public policy decisions that infringe upon fundamental rights; judges that adopt it are thus fully positioned to render justice in the Kantian sense (the monitoring function). Finally, the Court expanded the scope of the right to privacy (the oracular function): homosexuals may not be excluded from military service. It did so by methodically rejecting each of the UK’s arguments in support of its policy. At the same time, the Court stressed that those ‘European countries operating a blanket legal ban on homosexuals in their armed forces are now in a small minority.’ Although protests were heard, the UK lifted the ban in 2000.Footnote ³⁹ After adoption, UK commissions charged with reviewing the reform found no significant negative effects of integrating homosexuals into the armed forces.

Smith and Grady is just one of hundreds of important cases in which the Court has explicitly rejected a strategy of rights minimalism. It has steadily raised standards of protection with regard to every Convention right, thereby requiring ongoing adjustment on the part of laggard states.Footnote ⁴⁰ Its approach to qualified rights is infused with cosmopolitan elements. In determining the size of a state’s margin of appreciation, the Court makes it clear that no state is ever alone in its rights-regarding activities; rather, the Court will evaluate justifications for limiting a Convention right in the light of state practice within the Council of Europe and beyond. It is not uncommon for the Court to discuss rulings of the Canadian Supreme Court and the South African Constitutional Court, for example.

Third, the incentives facing national judges push them toward implementing the Court’s progressive rulings, as well as raising standards on their own. Simplifying a complex topic, there are several basic logics at work. The first is an ‘avoidance of punishment’ rationale: enforcing Convention rights will make the state – in practice, the judiciary – less vulnerable to censure in Strasbourg. This logic is especially pronounced in national systems that otherwise prohibit the judicial review of statute, or do not have a national charter of rights. A second dynamic is embedded in domestic politics. Individuals and NGOs may seek to leverage the ECHR to alter law and policy, and national judges may work to entrench Convention rights in order to enhance their own authority with respect to legislators and executives. Third, as the CLO gains in effectiveness, the interest high courts have in using the Convention, and seeking to influence the evolution of the ECHR, increases (see Bjørge Reference Bjørge2011). Even for a court that is relatively jealous of its own autonomy, constructive engagement is more likely to constrain the Court than the more costly alternatives: defection and open conflict. With regard to domestic arrangements, exercising power within the CLO may well be more attractive than submitting to the authority of the legislature or constitutional court. Friction among national authorities, and between national courts and the European Court, has been an important catalyst for the regime’s progressive development.

Beyond individual justice

Protocol No. 11 fully exposes states to the supervisory machinery of the ECHR, but the reform did not transfer sovereignty to the Court. The Court’s formal powers remain tailored to its primary mission: rendering justice to individual claimants. Nonetheless, the European Court performs many of the same functions that powerful national constitutional courts do, using similar techniques, with broadly similar effects (Sadurski Reference Sadurski2009; Stone Sweet Reference Stone Sweet2009). The Court confronts cases that would be classified, in the context of domestic law, as inherently ‘constitutional.’ The Court has consistently held that its interpretative precedents bind all judges in the system (Besson Reference Besson and Besson2012);Footnote ⁴¹ it resolves alleged conflicts between rights and state interests through balancing, using PA; and it routinely indicates how a state must reform its law in order to avoid future violations. Further, the Court’s most important rulings place national policymakers ‘in the shadow’ of future litigation, provoking a politics of adaptation akin to the rights-based jurisgenerativity one finds in national systems of constitutional justice.Footnote ⁴² It would therefore be a serious mistake to read the Convention literally to conclude that the Court’s major role is to render individual justice.

Appendix 2 provides basic data on applications and rulings for each member of the ECHR since the entry into force of Protocol No. 11 through 2010. The huge number of applications to the Court comprises a fairly direct measure of the enormous social demand for rights protection under the Convention.Footnote ⁴³ Pursuant to more than 400,000 petitions, the Court rendered some 10,577 findings of violation, and 588 rulings of no violation; the Court allowed a further 995 cases to be settled by states with the accord of the applicant. Thus, while competition for the Court’s attention is fierce, petitioners prevail in more than 95% of cases ruled admissible. Given the flood of applications, the Court has little choice but to use individual cases to shed light on general problems, and then work to help national authorities resolve them. In recent years, structural deficiencies in a handful of states have generated the majority of applications.Footnote ⁴⁴ Where multitudes of ‘clone’ petitions are produced by the same national laws or practices, the Court may issue a ‘pilot’ judgment, a ruling that ‘requires’ a state to change its law so as to avoid chronically reproducing the same violation.Footnote ⁴⁵

The types of cases the Court confronts vary widely.Footnote ⁴⁶ It monitors states that are incapable of maintaining minimal standards of rights protection while routinely generating serious violations (right to life, access to justice, prohibition of torture). Following World War II (Greece and Turkey), and then again after the collapse of the Soviet bloc (including Georgia, Romania, Russia, Serbia, and the Ukraine), the Council of Europe chose to admit important states that could not be expected, in the near term, to meet the criteria normally expected for membership. These decisions placed a huge burden on the Court. Today, it regularly confronts cases concerning the organization of elections, high-level malfeasance, and military operations both at home and abroad, without reliance on a ‘political questions’ doctrine, or other deference doctrines that would be anathema to the very notion of a CLO.

What the data do not show are the myriad ways in which ECHR membership bolsters weak domestic systems. Even the worst ‘problem’ states, such as Russia and the Ukraine (Nußberger Reference Nußberger, Keller and Stone Sweet2008), Turkey and Greece (Kaboğlu and Koutnatzis Reference Kaboğlu, Koutnatzis, Keller and Stone Sweet2008), and many other post-Communist states (Emmert and Hammer 2011), have undergone massive legal reforms, major progress that would not have been made without ECHR membership and incorporation. The Court is the agent of the CLO within national orders. As Buyse and Hamilton (Reference Buyse, Hamilton, Buyse and Hamilton2011: 300) put it: ‘Through its jurisprudence and its ripple effects, the Court fosters the values of democracy, plurality, openness and the rule of law. In doing so, it maps the transitional goals to be pursued and helps [post-Communist] societies, through the interplay with national institutions and civil society actors, [to address] current and future threats to democracy and human rights.’

States boasting robust systems of domestic rights protection (e.g., Germany, Ireland, and Spain) generate important cases in areas in which the protection offered lags behind that of other important systems. The perception of a differential in relative standards across jurisdictions not only attracts applications; it also animates the Court’s majoritarian activism and the dynamic of inter-judicial competition that enables the CLO to transcend rights minimalism. Perhaps counter-intuitively, the Court’s oracular, law-making function is most prominently exercised when it deals with high-standard states. Participation in the CLO helps them ‘fine-tune’ rights-protection. The CLO fills gaps in national protection and demands continuous adjustment on the part of all of its members.

Beyond borders

For cosmopolitans, the Court’s capacity to render justice to foreigners and to people who are marginalized by, and within, national systems is a factor of special importance to the argument that a CLO has emerged in Europe. Securing the rights of marginalized groups has become one of the central objectives of the ECHR regime (Anagnostou and Psychogiopoulou Reference Anagnostou and Psychogiopoulou2010). The Council of Europe manages dedicated programs designed to ameliorate the plight of Roma and Travelers, for example; and the Court has become deeply engaged in supervising national treatment of Roma after findings of violation.Footnote ⁴⁷ More generally, treatment of foreign nationals, oppressed minorities, and asylum seekers are major sources of applications and jurisprudence. While no one would claim that the Court, on its own, can eliminate such discrimination, the jurisgenerative effects of the CLO on rights politics within states deserve to be taken seriously. Lawyers and NGOs operating at the national level now routinely leverage the ECHR and the Court’s jurisprudence in efforts to change policy and improve the lives of individuals and groups, and sometimes these efforts succeed. State officials may seek to limit the scope of the Court’s rulings. But they remain under the supervision of the Council of Europe and the courts, under an expanding cosmopolitan jurisprudence that shines a bright light on discriminatory practices.

To conclude, I will focus on two strands of cosmopolitan jurisprudence that concern citizens of states that are not members of the ECHR. In the first, the Court has held that Article 3 ECHR, which prohibits torture and inhumane and degrading treatment, barred states from extraditing individuals to a non-ECHR country when ‘substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3.’Footnote ⁴⁸ In Saadi (2008), the Court, exercising authority to order interim measures under its Rules of Procedure,Footnote ⁴⁹ requested Italy to stay a decision to deport a Tunisian national to Tunisia, pending a ruling on the merits. Italy complied. The Court ruled that deportation of Mr. Saadi would violate Article 3, citing reports by Human Rights Watch, Amnesty International, and the U.S. State Department to the effect that torture and other forms of ill-treatment were routine in Tunisian prisons. The Court pointedly rejected arguments made by the UK, as amicus, suggesting that states did not bear the same obligations under the Convention if the ill-treatment was ‘inflicted by the authorities of another State” and that ‘this latter form of ill-treatment should be weighed against the [security] interests’ of the community. Unlike most of the Convention, the Court ruled, Article 3 is not qualified by permitted derogations, and thus excludes balancing. The Court’s lack of deference contrasts sharply with the refusal of U.S. courts to adjudicate cases involving official torture pursuant to ‘extraordinary rendition.’Footnote ⁵⁰

A second strand flows from a series of rulings that extended coverage of the Convention to state acts that harm people living outside of the territory of the Council of Europe (Gondek Reference Gondek2009). The most dramatic of these require the courts to review the conduct of armed forces acting abroad in wartime situations. In 2011, the Court rendered two major rulings, virtually unanimously on the important points of law. Al-Skeini Footnote ⁵¹ concerned the deaths of six Iraqi civilians killed by UK patrols during the UK’s participation in the Coalition Provisional Authority (which governed Iraq in 2003–04). The UK Government had denied requests, brought by relatives of five of these victims, for an inquiry and for consideration of liability and compensation. The UK courts dismissed the application for judicial review of the Government’s position on two grounds: that the killings fell outside their jurisdiction, and that the Convention did not cover the relatives of victims. The European Court, echoing prior rulings, held that when a state, ‘as a consequence of military occupation … exercises all or some of the public powers normally to be exercised by that Government’ then its responsibilities under the Convention are engaged. Further, ‘whenever the State through its agents exercises control and authority over an individual … the State is under an obligation to secure to that individual the rights and freedoms … that are relevant to the situation of that individual.’ For its failure to undertake a formal investigation of the deaths, the relatives of five victims were awarded 40,000 Euros in costs (jointly) and 25,000 Euros each in compensation.

In Al-Jedda,Footnote ⁵² the Court censured the UK for having imprisoned the petitioner in Iraq for more than three years without bringing charges, contrary to Article 5 ECHR. In its defense, the UK claimed that Mr. Al-Jeddah had ‘conspired’ to commit acts of terrorism, that his incarceration was necessary for ‘imperative reasons of security’ and that it was acting lawfully, as an agent of the United Nations under a series of Resolutions of the UN Security Council.Footnote ⁵³ The House of Lords dismissed the case, holding that state obligations under UN Security Council Resolutions overrode those of the ECHR. The European Court found for the petitioner and, in a move of great potential importance, positioned itself as a check on the Security Council:

Al-Jeddah thus extends the reach of cosmopolitan constitutionalism into a realm beyond the ECHR.

In a CLO, every public authority, including the UN, bears a duty to justify acts that would have the effect of violating the fundamental rights of individuals.Footnote ⁵⁴