Saturday, March 15, 2014
Presidential Board Room (Omni Shoreham)
Two general trends at the national level of fundamental rights protection can be identified in Europe, which strongly influence one another. On the one hand, many countries experience a strong Europeanisation at the domestic level of fundamental rights protection. On the other hand, this first trend causes a (sense of) loss of influence at the national level. This instigates a trend towards a strong emphasis on subsidiarity, constitutional identity and a national constitutional dynamic, often based on scepticism of and a counter-reaction to the first trend. In the light of these trends, I intend to analyse the underlying strategy of lessening the influence of the European Court of Human Rights (ECtHR) through constitutional and conventional reforms concerning fundamental rights protection. These reforms aim at shielding the nation from too much influence of the ECtHR and try to disrupt the trend of ‘Europeanisation’ of fundamental rights protection. The question arises to what extent this is an attempt to resurrect the principle of absolute national sovereignty in the light of increasing euro-scepticism and, if so, to what extent this can be accomplished. I will focus in particular on the proposal in the UK of replacing the Human Rights Act 1998 with a home-grown Bill of Rights, the proposal in the Netherlands to revoke the judicial mandate to review legislation against international law provisions (Art. 94 Constitution) and the current reform proposals of the ECHR pressing the need for more subsidiarity and a broader margin of appreciation.
